Flowers v. Mississippi

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FLOWERS v. MISSISSIPPI

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

No. 17–9572. Argued March 20, 2019—Decided June 21, 2019

Petitioner Curtis Flowers has been tried six separate times for the

murder of four employees of a Mississippi furniture store. Flowers is

black; three of the four victims were white. At the first two trials, the

State used its peremptory strikes on all of the qualified black pro-

spective jurors. In each case, the jury convicted Flowers and sen-

tenced him to death, but the convictions were later reversed by the

Mississippi Supreme Court based on prosecutorial misconduct. At

the third trial, the State used all of its 15 peremptory strikes against

black prospective jurors, and the jury convicted Flowers and sen-

tenced him to death. The Mississippi Supreme Court reversed again,

this time concluding that the State exercised its peremptory strikes

on the basis of race in violation of Batson v. Kentucky, 476 U. S. 79.

Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the

State exercised 11 peremptory strikes—all against black prospective

jurors. No available racial information exists about the prospective

jurors in the fifth trial. At the sixth trial, the State exercised six per-

emptory strikes—five against black prospective jurors, allowing one

black juror to be seated. Flowers again raised a Batson claim, but

the trial court concluded that the State had offered race-neutral rea-

sons for each of the five peremptory strikes. The jury convicted

Flowers and sentenced him to death. The Mississippi Supreme Court

affirmed. After this Court vacated that judgment and remanded in

light of Foster v. Chatman, 578 U. S. ___, the Mississippi Supreme

Court again upheld Flowers’ conviction in a divided 5-to-4 decision.

Justice King dissented on the Batson issue and was joined by two

other Justices.

Held: All of the relevant facts and circumstances taken together estab-

lish that the trial court at Flowers’ sixth trial committed clear error

in concluding that the State’s peremptory strike of black prospective

2 FLOWERS v. MISSISSIPPI

Syllabus

juror Carolyn Wright was not motivated in substantial part by dis-

criminatory intent. Pp. 7–31.

(a) Under Batson, once a prima facie case of discrimination has

been shown by a defendant, the State must provide race-neutral rea-

sons for its peremptory strikes. The trial judge then must determine

whether the prosecutor’s stated reasons were the actual reasons or

instead were a pretext for discrimination. The Batson Court rejected

four arguments. First, the Batson Court rejected the idea that a de-

fendant must demonstrate a history of racially discriminatory strikes

in order to make out a claim of race discrimination. Second, the Bat-

son Court rejected the argument that a prosecutor could strike a

black juror based on an assumption or belief that the black juror

would favor a black defendant. Third, the Batson Court rejected the

argument that race-based peremptories should be permissible be-

cause black, white, Asian, and Hispanic defendants and jurors were

all “equally” subject to race-based discrimination. Fourth, the Batson

Court rejected the argument that race-based peremptories are per-

missible because both the prosecution and defense could employ them

in any individual case and in essence balance things out. Pp. 7–15.

(b) Four categories of evidence loom large in assessing the Batson

issue here, where the State had a persistent pattern of striking black

prospective jurors from Flowers’ first through his sixth trial. Pp. 15–

30.

(1) A review of the history of the State’s peremptory strikes in

Flowers’ first four trials strongly supports the conclusion that the

State’s use of peremptory strikes in Flowers’ sixth trial was motivat-

ed in substantial part by discriminatory intent. The State tried to

strike all 36 black prospective jurors over the course of the first four

trials. And the state courts themselves concluded that the State had

violated Batson on two separate occasions. The State’s relentless, de-

termined effort to rid the jury of black individuals strongly suggests

that the State wanted to try Flowers before a jury with as few black

jurors as possible, and ideally before an all-white jury. Pp. 19–22.

(2) The State’s use of peremptory strikes in Flowers’ sixth trial

followed the same pattern as the first four trials. Pp. 22–23.

(3) Disparate questioning can be probative of discriminatory in-

tent. Miller-El v. Cockrell, 537 U. S. 322, 331–332, 344–345. Here,

the State spent far more time questioning the black prospective ju-

rors than the accepted white jurors—145 questions asked of 5 black

prospective jurors and 12 questions asked of 11 white seated jurors.

The record refutes the State’s explanation that it questioned black

and white prospective jurors differently only because of differences in

the jurors’ characteristics. Along with the historical evidence from

the earlier trials, as well as the State’s striking of five of six black

Cite as: 588 U. S. ____ (2019) 3

Syllabus

prospective jurors at the sixth trial, the dramatically disparate ques-

tioning and investigation of black prospective jurors and white pro-

spective jurors at the sixth trial strongly suggest that the State was

motivated in substantial part by a discriminatory intent. Pp. 23–26.

(4) Comparing prospective jurors who were struck and not struck

can be an important step in determining whether a Batson violation

occurred. See Snyder v. Louisiana, 552 U. S. 472, 483–484. Here,

Carolyn Wright, a black prospective juror, was struck, the State says,

in part because she knew several defense witnesses and had worked

at Wal-Mart where Flowers’ father also worked. But three white

prospective jurors also knew many individuals involved in the case,

and the State asked them no individual questions about their connec-

tions to witnesses. White prospective jurors also had relationships

with members of Flowers’ family, but the State did not ask them fol-

low-up questions in order to explore the depth of those relationships.

The State also incorrectly explained that it exercised a peremptory

strike against Wright because she had worked with one of Flowers’

sisters and made apparently incorrect statements to justify the

strikes of other black prospective jurors. When considered with other

evidence, a series of factually inaccurate explanations for striking

black prospective jurors can be another clue showing discriminatory

intent. The overall context here requires skepticism of the State’s

strike of Carolyn Wright. The trial court at Flowers’ sixth trial com-

mitted clear error in concluding that the State’s peremptory strike of

black prospective juror Carolyn Wright was not motivated in sub-

stantial part by discriminatory intent. Pp. 26–30.

240 So. 3d 1082, reversed and remanded.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,

joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed a dis-

senting opinion, in which GORSUCH, J., joined as to Parts I, II, and III.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–9572

_________________

CURTIS GIOVANNI FLOWERS, PETITIONER

v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSISSIPPI

[June 21, 2019]

JUSTICE KAVANAUGH delivered the opinion of the Court.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court

ruled that a State may not discriminate on the basis of

race when exercising peremptory challenges against pro-

spective jurors in a criminal trial.

In 1996, Curtis Flowers allegedly murdered four people

in Winona, Mississippi. Flowers is black. He has been

tried six separate times before a jury for murder. The

same lead prosecutor represented the State in all six

trials.

In the initial three trials, Flowers was convicted, but the

Mississippi Supreme Court reversed each conviction. In

the first trial, Flowers was convicted, but the Mississippi

Supreme Court reversed the conviction due to “numerous

instances of prosecutorial misconduct.” Flowers v. State,

773 So. 2d 309, 327 (2000). In the second trial, the trial

court found that the prosecutor discriminated on the basis

of race in the peremptory challenge of a black juror. The

trial court seated the black juror. Flowers was then con-

victed, but the Mississippi Supreme Court again reversed

the conviction because of prosecutorial misconduct at trial.

2 FLOWERS v. MISSISSIPPI

Opinion of the Court

In the third trial, Flowers was convicted, but the Missis-

sippi Supreme Court yet again reversed the conviction,

this time because the court concluded that the prosecutor

had again discriminated against black prospective jurors

in the jury selection process. The court’s lead opinion

stated: “The instant case presents us with as strong a

prima facie case of racial discrimination as we have ever

seen in the context of a Batson challenge.” Flowers v.

State, 947 So. 2d 910, 935 (2007). The opinion further

stated that the “State engaged in racially discriminatory

practices during the jury selection process” and that the

“case evinces an effort by the State to exclude African-

Americans from jury service.” Id., at 937, 939.

The fourth and fifth trials of Flowers ended in mistrials

due to hung juries.

In his sixth trial, which is the one at issue here, Flowers

was convicted. The State struck five of the six black pro-

spective jurors. On appeal, Flowers argued that the State

again violated Batson in exercising peremptory strikes

against black prospective jurors. In a divided 5-to-4 deci-

sion, the Mississippi Supreme Court affirmed the convic-

tion. We granted certiorari on the Batson question and

now reverse. See 586 U. S. ___ (2018).

Four critical facts, taken together, require reversal.

First, in the six trials combined, the State employed its

peremptory challenges to strike 41 of the 42 black prospec-

tive jurors that it could have struck—a statistic that the

State acknowledged at oral argument in this Court. Tr. of

Oral Arg. 32. Second, in the most recent trial, the sixth

trial, the State exercised peremptory strikes against five of

the six black prospective jurors. Third, at the sixth trial,

in an apparent effort to find pretextual reasons to strike

black prospective jurors, the State engaged in dramatically

disparate questioning of black and white prospective

jurors. Fourth, the State then struck at least one black

prospective juror, Carolyn Wright, who was similarly

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

situated to white prospective jurors who were not struck

by the State.

We need not and do not decide that any one of those four

facts alone would require reversal. All that we need to

decide, and all that we do decide, is that all of the relevant

facts and circumstances taken together establish that the

trial court committed clear error in concluding that the

State’s peremptory strike of black prospective juror Car-

olyn Wright was not “motivated in substantial part by

discriminatory intent.” Foster v. Chatman, 578 U. S. ___,

___ (2016) (slip op., at 23) (internal quotation marks omit-

ted). In reaching that conclusion, we break no new legal

ground. We simply enforce and reinforce Batson by apply-

ing it to the extraordinary facts of this case.

We reverse the judgment of the Supreme Court of Mis-

sissippi, and we remand the case for further proceedings

not inconsistent with this opinion.

I

The underlying events that gave rise to this case took

place in Winona, Mississippi. Winona is a small town in

northern Mississippi, just off I–55 almost halfway between

Jackson and Memphis. The total population of Winona is

about 5,000. The town is about 53 percent black and

about 46 percent white.

In 1996, Bertha Tardy, Robert Golden, Derrick Stewart,

and Carmen Rigby were murdered at the Tardy Furniture

store in Winona. All four victims worked at the Tardy

Furniture store. Three of the four victims were white; one

was black. In 1997, the State charged Curtis Flowers with

murder. Flowers is black. Since then, Flowers has been

tried six separate times for the murders. In each of the

first two trials, Flowers was tried for one individual mur-

der. In each subsequent trial, Flowers was tried for all

four of the murders together. The same state prosecutor

tried Flowers each time. The prosecutor is white.

4 FLOWERS v. MISSISSIPPI

Opinion of the Court

At Flowers’ first trial, 36 prospective jurors—5 black

and 31 white—were presented to potentially serve on the

jury. The State exercised a total of 12 peremptory strikes,

and it used 5 of them to strike the five qualified black

prospective jurors. Flowers objected, arguing under Bat-

son that the State had exercised its peremptory strikes in

a racially discriminatory manner. The trial court rejected

the Batson challenge. Because the trial court allowed the

State’s peremptory strikes, Flowers was tried in front of

an all-white jury. The jury convicted Flowers and sen-

tenced him to death.

On appeal, the Mississippi Supreme Court reversed the

conviction, concluding that the State had committed pros-

ecutorial misconduct in front of the jury by, among other

things, expressing baseless grounds for doubting the

credibility of witnesses and mentioning facts that had not

been allowed into evidence by the trial judge. Flowers,

773 So. 2d, at 317, 334. In its opinion, the Mississippi

Supreme Court described “numerous instances of prosecu-

torial misconduct” at the trial. Id., at 327. Because the

Mississippi Supreme Court reversed based on prosecutorial

misconduct at trial, the court did not reach Flowers’

Batson argument. See Flowers, 773 So. 2d, at 327.

At the second trial, 30 prospective jurors—5 black and

25 white—were presented to potentially serve on the jury.

As in Flowers’ first trial, the State again used its strikes

against all five black prospective jurors. But this time, the

trial court determined that the State’s asserted reason for

one of the strikes was a pretext for discrimination. Specif-

ically, the trial court determined that one of the State’s

proffered reasons—that the juror had been inattentive and

was nodding off during jury selection—for striking that

juror was false, and the trial court therefore sustained

Flowers’ Batson challenge. The trial court disallowed the

strike and sat that black juror on the jury. The jury at

Flowers’ second trial consisted of 11 white jurors and 1

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court

black juror. The jury convicted Flowers and sentenced

him to death.

On appeal, the Mississippi Supreme Court again re-

versed. The court ruled that the prosecutor had again

engaged in prosecutorial misconduct in front of the jury

by, among other things, impermissibly referencing evi-

dence and attempting to undermine witness credibility

without a factual basis. See Flowers v. State, 842 So. 2d

531, 538, 553 (2003).

At Flowers’ third trial, 45 prospective jurors—17 black

and 28 white—were presented to potentially serve on the

jury. One of the black prospective jurors was struck for

cause, leaving 16. The State exercised a total of 15 per-

emptory strikes, and it used all 15 against black prospec-

tive jurors. Flowers again argued that the State had used

its peremptory strikes in a racially discriminatory man-

ner. The trial court found that the State had not discrimi-

nated on the basis of race. See Flowers, 947 So. 2d, at 916.

The jury in Flowers’ third trial consisted of 11 white jurors

and 1 black juror. The lone black juror who served on the

jury was seated after the State ran out of peremptory

strikes. The jury convicted Flowers and sentenced him to

death.

On appeal, the Mississippi Supreme Court yet again

reversed, concluding that the State had again violated

Batson by discriminating on the basis of race in exercising

all 15 of its peremptory strikes against 15 black prospec-

tive jurors. See Flowers, 947 So. 2d, at 939. The court’s

lead opinion stated: “The instant case presents us with as

strong a prima facie case of racial discrimination as we

have ever seen in the context of a Batson challenge.” Id.,

at 935. The opinion explained that although “each indi-

vidual strike may have justifiably appeared to the trial

court to be sufficiently race neutral, the trial court also

has a duty to look at the State’s use of peremptory chal-

lenges in toto.” Id., at 937. The opinion emphasized that

6 FLOWERS v. MISSISSIPPI

Opinion of the Court

“trial judges should not blindly accept any and every

reason put forth by the State, especially” when “the State

continues to exercise challenge after challenge only upon

members of a particular race.” Ibid. The opinion added

that the “State engaged in racially discriminatory practices”

and that the “case evinces an effort by the State to

exclude African-Americans from jury service.” Id., at

937, 939.

At Flowers’ fourth trial, 36 prospective jurors—16 black

and 20 white—were presented to potentially serve on the

jury. The State exercised a total of 11 peremptory strikes,

and it used all 11 against black prospective jurors. But

because of the relatively large number of prospective

jurors who were black, the State did not have enough

peremptory challenges to eliminate all of the black pro-

spective jurors. The seated jury consisted of seven white

jurors and five black jurors. That jury could not reach a

verdict, and the proceeding ended in a mistrial.

As to the fifth trial, there is no available racial infor-

mation about the prospective jurors, as distinct from the

jurors who ultimately sat on the jury. The jury was com-

posed of nine white jurors and three black jurors. The

jury could not reach a verdict, and the trial again ended in

a mistrial.

At the sixth trial, which we consider here, 26 prospec-

tive jurors—6 black and 20 white—were presented to

potentially serve on the jury. The State exercised a total

of six peremptory strikes, and it used five of the six

against black prospective jurors, leaving one black juror to

sit on the jury. Flowers again argued that the State had

exercised its peremptory strikes in a racially discrimina-

tory manner. The trial court concluded that the State had

offered race-neutral reasons for each of the five peremp-

tory strikes against the five black prospective jurors. The

jury at Flowers’ sixth trial consisted of 11 white jurors and

1 black juror. That jury convicted Flowers of murder and

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court

sentenced him to death.

In a divided decision, the Mississippi Supreme Court

agreed with the trial court on the Batson issue and stated

that the State’s “race-neutral reasons were valid and not

merely pretextual.” Flowers v. State, 158 So. 3d 1009,

1058 (2014). Flowers then sought review in this Court.

This Court granted Flowers’ petition for a writ of certio-

rari, vacated the judgment of the Mississippi Supreme

Court, and remanded for further consideration in light of

the decision in Foster, 578 U. S. ___. Flowers v. Mississippi,

579 U. S. ___ (2016). In Foster, this Court held that the

defendant Foster had established a Batson violation. 578

U. S., at ___ (slip op., at 25).

On remand, the Mississippi Supreme Court by a 5-to-4

vote again upheld Flowers’ conviction. See 240 So. 3d

1082 (2017). Justice King wrote a dissent for three justices.

He stated: “I cannot conclude that Flowers received a

fair trial, nor can I conclude that prospective jurors were

not subjected to impermissible discrimination.” Id., at

1172. According to Justice King, both the trial court and

the Mississippi Supreme Court “completely disregard[ed]

the constitutional right of prospective jurors to be free

from a racially discriminatory selection process.” Id., at

1171. We granted certiorari. See 586 U. S. ___.

II

A

Other than voting, serving on a jury is the most sub-

stantial opportunity that most citizens have to participate

in the democratic process. See Powers v. Ohio, 499 U. S.

400, 407 (1991).

Jury selection in criminal cases varies significantly

based on state and local rules and practices, but ordinarily

consists of three phases, which we describe here in general

terms. First, a group of citizens in the community is ran-

domly summoned to the courthouse on a particular day for

8 FLOWERS v. MISSISSIPPI

Opinion of the Court

potential jury service. Second, a subgroup of those pro-

spective jurors is called into a particular courtroom for a

specific case. The prospective jurors are often questioned

by the judge, as well as by the prosecutor and defense

attorney. During that second phase, the judge may excuse

certain prospective jurors based on their answers. Third,

the prosecutor and defense attorney may challenge certain

prospective jurors. The attorneys may challenge prospec-

tive jurors for cause, which usually stems from a potential

juror’s conflicts of interest or inability to be impartial. In

addition to challenges for cause, each side is typically

afforded a set number of peremptory challenges or strikes.

Peremptory strikes have very old credentials and can be

traced back to the common law. Those peremptory strikes

traditionally may be used to remove any potential juror for

any reason—no questions asked.

That blanket discretion to peremptorily strike prospec-

tive jurors for any reason can clash with the dictates of the

Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution. This case arises at the

intersection of the peremptory challenge and the Equal

Protection Clause. And to understand how equal protec-

tion law applies to peremptory challenges, it helps to begin

at the beginning.

Ratified in 1868 in the wake of the Civil War, the Equal

Protection Clause of the Fourteenth Amendment provides

that no State shall “deny to any person within its jurisdic-

tion the equal protection of the laws.” A primary objective

of the Equal Protection Clause, this Court stated just five

years after ratification, was “the freedom of the slave race,

the security and firm establishment of that freedom, and

the protection of the newly-made freeman and citizen from

the oppressions of those who had formerly exercised un-

limited dominion over him.” Slaughter-House Cases, 16

Wall. 36, 71 (1873).

In 1875, to help enforce the Fourteenth Amendment,

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

Congress passed and President Ulysses S. Grant signed

the Civil Rights Act of 1875. Ch. 114, 18 Stat. 335.

Among other things, that law made it a criminal offense

for state officials to exclude individuals from jury service

on account of their race. 18 U. S. C. §243. The Act pro-

vides: “No citizen possessing all other qualifications which

are or may be prescribed by law shall be disqualified for

service as grand or petit juror in any court of the United

States, or of any State on account of race, color, or previ-

ous condition of servitude.”

In 1880, just 12 years after ratification of the Four-

teenth Amendment, the Court decided Strauder v. West

Virginia, 100 U. S. 303. That case concerned a West

Virginia statute that allowed whites only to serve as ju-

rors. The Court held the law unconstitutional.

In reaching its conclusion, the Court explained that the

Fourteenth Amendment required “that the law in the

States shall be the same for the black as for the white;

that all persons, whether colored or white, shall stand

equal before the laws of the States, and, in regard to the

colored race, for whose protection the amendment was

primarily designed, that no discrimination shall be made

against them by law because of their color.” Id., at 307.

In the words of the Strauder Court: “The very fact that

colored people are singled out and expressly denied by a

statute all right to participate in the administration of the

law, as jurors, because of their color, though they are

citizens, and may be in other respects fully qualified, is

practically a brand upon them, affixed by the law, an

assertion of their inferiority, and a stimulant to that race

prejudice which is an impediment to securing to individu-

als of the race that equal justice which the law aims to

secure to all others.” Id., at 308. For those reasons, the

Court ruled that the West Virginia statute exclud-

ing blacks from jury service violated the Fourteenth

Amendment.

10 FLOWERS v. MISSISSIPPI

Opinion of the Court

As the Court later explained in Brown v. Board of Edu-

cation, 347 U. S. 483 (1954), the Court’s decisions in the

Slaughter-House Cases and Strauder interpreted the

Fourteenth Amendment “as proscribing all state-imposed

discriminations against the Negro race,” including in jury

service. Brown, 347 U. S., at 490.

In the decades after Strauder, the Court reiterated that

States may not discriminate on the basis of race in jury

selection. See, e.g., Neal v. Delaware, 103 U. S. 370, 397

(1881); Carter v. Texas, 177 U. S. 442, 447 (1900); Norris v.

Alabama, 294 U. S. 587, 597–599 (1935); Hale v. Kentucky,

303 U. S. 613, 616 (1938) (per curiam); Pierre v. Louisiana,

306 U. S. 354, 362 (1939); Smith v. Texas, 311 U. S. 128,

130–131 (1940); Avery v. Georgia, 345 U. S. 559, 562

(1953); Hernandez v. Texas, 347 U. S. 475, 477–478, 482

(1954); Coleman v. Alabama, 377 U. S. 129, 133 (1964).

But critical problems persisted. Even though laws

barring blacks from serving on juries were unconstitutional

after Strauder, many jurisdictions employed various

discriminatory tools to prevent black persons from being

called for jury service. And when those tactics failed, or

were invalidated, prosecutors could still exercise peremp-

tory strikes in individual cases to remove most or all black

prospective jurors.

In the century after Strauder, the freedom to exercise

peremptory strikes for any reason meant that “the prob-

lem of racial exclusion from jury service” remained “wide-

spread” and “deeply entrenched.” 5 U. S. Commission on

Civil Rights Report 90 (1961). Simple math shows how

that happened. Given that blacks were a minority of the

population, in many jurisdictions the number of peremp-

tory strikes available to the prosecutor exceeded the number

of black prospective jurors. So prosecutors could routinely

exercise peremptories to strike all the black prospective

jurors and thereby ensure all-white juries. The exclusion

of black prospective jurors was almost total in certain

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

jurisdictions, especially in cases involving black defend-

ants. Similarly, defense counsel could use—and routinely

did use—peremptory challenges to strike all the black

prospective jurors in cases involving white defendants and

black victims.

In the aftermath of Strauder, the exclusion of black

jurors became more covert and less overt—often accom-

plished through peremptory challenges in individual

courtrooms rather than by blanket operation of law. But

as this Court later noted, the results were the same for

black jurors and black defendants, as well as for the black

community’s confidence in the fairness of the American

criminal justice system. See Batson, 476 U. S., at 98–99.

Eighty-five years after Strauder, the Court decided

Swain v. Alabama, 380 U. S. 202 (1965). The defendant

Swain was black. Swain was convicted of a capital offense

in Talladega County, Alabama, and sentenced to death.

Swain presented evidence that no black juror had served

on a jury in Talladega County in more than a decade. See

id., at 226. And in Swain’s case, the prosecutor struck all

six qualified black prospective jurors, ensuring that Swain

was tried before an all-white jury. Swain invoked Strauder

to argue that the prosecutor in his case had impermis-

sibly discriminated on the basis of race by using peremp-

tory challenges to strike the six black prospective jurors.

See 380 U. S., at 203, 210.

This Court ruled that Swain had not established uncon-

stitutional discrimination. Most importantly, the Court

held that a defendant could not object to the State’s use of

peremptory strikes in an individual case. In the Court’s

words: “[W]e cannot hold that the striking of Negroes in a

particular case is a denial of equal protection of the laws.”

Id., at 221. The Swain Court reasoned that prosecutors do

not always judge prospective jurors individually when

exercising peremptory strikes. Instead, prosecutors

choose which prospective jurors to strike “in light of the

12 FLOWERS v. MISSISSIPPI

Opinion of the Court

limited knowledge counsel has of them, which may include

their group affiliations, in the context of the case to be

tried.” Ibid. In the Court’s view, the prosecutor could

strike prospective jurors on the basis of their group affilia-

tions, including race. In other words, a prosecutor could

permissibly strike a prospective juror for any reason,

including the assumption or belief that a black prospective

juror, because of race, would be favorable to a black de-

fendant or unfavorable to the State. See id., at 220–221.

To be sure, the Swain Court held that a defendant could

make out a case of racial discrimination by showing that

the State “in case after case, whatever the circumstances,

whatever the crime and whoever the defendant or the

victim may be,” had been responsible for the removal of

qualified black prospective jurors so that no black jurors

“ever serve on petit juries.” Id., at 223. But Swain’s high

bar for establishing a constitutional violation was almost

impossible for any defendant to surmount, as the after-

math of Swain amply demonstrated.

Twenty-one years later, in its 1986 decision in Batson,

the Court revisited several critical aspects of Swain and in

essence overruled them. In so doing, the Batson Court

emphasized that “the central concern” of the Fourteenth

Amendment “was to put an end to governmental discrimi-

nation on account of race.” 476 U. S., at 85. The Batson

Court noted that Swain had left prosecutors’ peremptory

challenges “largely immune from constitutional scrutiny.”

476 U. S., at 92–93. In his concurrence in Batson, Justice

Byron White (the author of Swain) agreed that Swain

should be overruled. He stated: “[T]he practice of peremp-

torily eliminating blacks from petit juries in cases with

black defendants remains widespread, so much so” that “I

agree with the Court that the time has come to rule as it

has.” 476 U. S., at 101–102.

Under Batson, once a prima facie case of discrimination

has been shown by a defendant, the State must provide

Cite as: 588 U. S. ____ (2019) 13

Opinion of the Court

race-neutral reasons for its peremptory strikes. The trial

judge must determine whether the prosecutor’s stated

reasons were the actual reasons or instead were a pretext

for discrimination. Id., at 97–98.

Four parts of Batson warrant particular emphasis here.

First, the Batson Court rejected Swain’s insistence that

a defendant demonstrate a history of racially discrimina-

tory strikes in order to make out a claim of race discrimi-

nation. See 476 U. S., at 95. According to the Batson

Court, defendants had run into “practical difficulties” in

trying to prove that a State had systematically “exercised

peremptory challenges to exclude blacks from the jury on

account of race.” Id., at 92, n. 17. The Batson Court ex-

plained that, in some jurisdictions, requiring a defendant

to “investigate, over a number of cases, the race of persons

tried in the particular jurisdiction, the racial composition

of the venire and petit jury, and the manner in which both

parties exercised their peremptory challenges” posed an

“insurmountable” burden. Ibid.

In addition to that practical point, the Court stressed a

basic equal protection point: In the eyes of the Constitu-

tion, one racially discriminatory peremptory strike is one

too many.

For those reasons, the Batson Court held that a criminal

defendant could show “purposeful discrimination in selec-

tion of the petit jury solely on evidence concerning the

prosecutor’s exercise of peremptory challenges at the

defendant’s trial.” Id., at 96 (emphasis added).

Second, the Batson Court rejected Swain’s statement

that a prosecutor could strike a black juror based on an

assumption or belief that the black juror would favor a

black defendant. In some of the most critical sentences in

the Batson opinion, the Court emphasized that a prosecu-

tor may not rebut a claim of discrimination “by stating

merely that he challenged jurors of the defendant’s race on

the assumption—or his intuitive judgment—that they

14 FLOWERS v. MISSISSIPPI

Opinion of the Court

would be partial to the defendant because of their shared

race.” 476 U. S., at 97. The Court elaborated: The Equal

Protection Clause “forbids the States to strike black veni-

remen on the assumption that they will be biased in a

particular case simply because the defendant is black.

The core guarantee of equal protection, ensuring citizens

that their State will not discriminate on account of race,

would be meaningless were we to approve the exclusion of

jurors on the basis of such assumptions, which arise solely

from the jurors’ race.” Id., at 97–98. In his concurrence,

Justice Thurgood Marshall drove the point home: “Exclu-

sion of blacks from a jury, solely because of race, can no

more be justified by a belief that blacks are less likely

than whites to consider fairly or sympathetically the

State’s case against a black defendant than it can be

justified by the notion that blacks lack the intelligence,

experience, or moral integrity to be entrusted with that

role.” Id., at 104–105 (internal quotation marks and

citations omitted).

Third, the Batson Court did not accept the argument

that race-based peremptories should be permissible be-

cause black, white, Asian, and Hispanic defendants and

jurors were all “equally” subject to race-based discrimina-

tion. The Court stated that each removal of an individual

juror because of his or her race is a constitutional viola-

tion. Discrimination against one defendant or juror on

account of race is not remedied or cured by discrimination

against other defendants or jurors on account of race. As

the Court later explained: Some say that there is no equal

protection violation if individuals “of all races are subject

to like treatment, which is to say that white jurors are

subject to the same risk of peremptory challenges based on

race as are all other jurors. The suggestion that racial

classifications may survive when visited upon all persons

is no more authoritative today than the case which ad-

vanced the theorem, Plessy v. Ferguson, 163 U. S. 537

Cite as: 588 U. S. ____ (2019) 15

Opinion of the Court

(1896). This idea has no place in our modern equal protec-

tion jurisprudence. It is axiomatic that racial classifica-

tions do not become legitimate on the assumption that all

persons suffer them in equal degree.” Powers, 499 U. S.,

at 410 (citing Loving v. Virginia, 388 U. S. 1 (1967)).

Fourth, the Batson Court did not accept the argument

that race-based peremptories are permissible because both

the prosecution and defense could employ them in any

individual case and in essence balance things out. Under

the Equal Protection Clause, the Court stressed, even a

single instance of race discrimination against a prospec-

tive juror is impermissible. Moreover, in criminal cases

involving black defendants, the both-sides-can-do-it argu-

ment overlooks the percentage of the United States popu-

lation that is black (about 12 percent) and the cold reality

of jury selection in most jurisdictions. Because blacks are

a minority in most jurisdictions, prosecutors often have

more peremptory strikes than there are black prospective

jurors on a particular panel. In the pre-Batson era, there-

fore, allowing each side in a case involving a black defend-

ant to strike prospective jurors on the basis of race meant

that a prosecutor could eliminate all of the black jurors,

but a black defendant could not eliminate all of the white

jurors. So in the real world of criminal trials against black

defendants, both history and math tell us that a system of

race-based peremptories does not treat black defendants

and black prospective jurors equally with prosecutors and

white prospective jurors. Cf. Batson, 476 U. S., at 99.

B

Equal justice under law requires a criminal trial free of

racial discrimination in the jury selection process. Enforc-

ing that constitutional principle, Batson ended the wide-

spread practice in which prosecutors could (and often

would) routinely strike all black prospective jurors in

cases involving black defendants. By taking steps to

16 FLOWERS v. MISSISSIPPI

Opinion of the Court

eradicate racial discrimination from the jury selection

process, Batson sought to protect the rights of defendants

and jurors, and to enhance public confidence in the fair-

ness of the criminal justice system. Batson immediately

revolutionized the jury selection process that takes place

every day in federal and state criminal courtrooms

throughout the United States.

In the decades since Batson, this Court’s cases have

vigorously enforced and reinforced the decision, and

guarded against any backsliding. See Foster, 578 U. S.

___; Snyder v. Louisiana, 552 U. S. 472 (2008); Miller-El v.

Dretke, 545 U. S. 231 (2005) (Miller-El II). Moreover, the

Court has extended Batson in certain ways. A defendant

of any race may raise a Batson claim, and a defendant

may raise a Batson claim even if the defendant and the

excluded juror are of different races. See Hernandez, 347

U. S., at 477–478; Powers, 499 U. S., at 406. Moreover,

Batson now applies to gender discrimination, to a criminal

defendant’s peremptory strikes, and to civil cases. See J.

E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994);

Georgia v. McCollum, 505 U. S. 42, 59 (1992); Edmonson

v. Leesville Concrete Co., 500 U. S. 614, 616 (1991).

Of particular relevance here, Batson’s holding raised

several important evidentiary and procedural issues, three

of which we underscore.

First, what factors does the trial judge consider in

evaluating whether racial discrimination occurred? Our

precedents allow criminal defendants raising Batson

challenges to present a variety of evidence to support a

claim that a prosecutor’s peremptory strikes were made on

the basis of race. For example, defendants may present:

 statistical evidence about the prosecutor’s use of

peremptory strikes against black prospective jurors

as compared to white prospective jurors in the case;

 evidence of a prosecutor’s disparate questioning and

Cite as: 588 U. S. ____ (2019) 17

Opinion of the Court

investigation of black and white prospective jurors

in the case;

 side-by-side comparisons of black prospective jurors

who were struck and white prospective jurors who

were not struck in the case;

 a prosecutor’s misrepresentations of the record

when defending the strikes during the Batson

hearing;

 relevant history of the State’s peremptory strikes in

past cases; or

 other relevant circumstances that bear upon the is-

sue of racial discrimination.

See Foster, 578 U. S. ___; Snyder, 552 U. S. 472; Miller-El

II, 545 U. S. 231; Batson, 476 U. S. 79.

Second, who enforces Batson? As the Batson Court

itself recognized, the job of enforcing Batson rests first and

foremost with trial judges. See id., at 97, 99, n. 22.

America’s trial judges operate at the front lines of Ameri-

can justice. In criminal trials, trial judges possess the

primary responsibility to enforce Batson and prevent

racial discrimination from seeping into the jury selection

process.

As the Batson Court explained and as the Court later

reiterated, once a prima facie case of racial discrimination

has been established, the prosecutor must provide race-

neutral reasons for the strikes. The trial court must con-

sider the prosecutor’s race-neutral explanations in light of

all of the relevant facts and circumstances, and in light of

the arguments of the parties. The trial judge’s assessment

of the prosecutor’s credibility is often important. The

Court has explained that “the best evidence of discrimina-

tory intent often will be the demeanor of the attorney who

exercises the challenge.” Snyder, 552 U. S., at 477 (quota-

tion altered). “We have recognized that these determina-

tions of credibility and demeanor lie peculiarly within a

18 FLOWERS v. MISSISSIPPI

Opinion of the Court

trial judge’s province.” Ibid. (internal quotation marks

omitted). The trial judge must determine whether the

prosecutor’s proffered reasons are the actual reasons, or

whether the proffered reasons are pretextual and the

prosecutor instead exercised peremptory strikes on the

basis of race. The ultimate inquiry is whether the State

was “motivated in substantial part by discriminatory

intent.” Foster, 578 U. S., at ___ (slip op., at 23) (internal

quotation marks omitted).

Third, what is the role of appellate review? An appeals

court looks at the same factors as the trial judge, but is

necessarily doing so on a paper record. “Since the trial

judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, a reviewing

court ordinarily should give those findings great defer-

ence.” Batson, 476 U. S., at 98, n. 21. The Court has

described the appellate standard of review of the trial

court’s factual determinations in a Batson hearing as

“highly deferential.” Snyder, 552 U. S., at 479. “On ap-

peal, a trial court’s ruling on the issue of discriminatory

intent must be sustained unless it is clearly erroneous.”

Id., at 477.

III

In accord with the principles set forth in Batson, we now

address Flowers’ case.

The Constitution forbids striking even a single prospec-

tive juror for a discriminatory purpose. See Foster, 578

U. S., at ___ (slip op., at 9). The question for this Court is

whether the Mississippi trial court clearly erred in con-

cluding that the State was not “motivated in substantial

part by discriminatory intent” when exercising peremp-

tory strikes at Flowers’ sixth trial. Id., at ___ (slip op., at 23)

(internal quotation marks omitted); see also Snyder, 552

U. S., at 477. Because this case arises on direct review, we

owe no deference to the Mississippi Supreme Court, as

Cite as: 588 U. S. ____ (2019) 19

Opinion of the Court

distinct from deference to the Mississippi trial court.

Four categories of evidence loom large in assessing the

Batson issue in Flowers’ case: (1) the history from Flowers’

six trials, (2) the prosecutor’s striking of five of six black

prospective jurors at the sixth trial, (3) the prosecutor’s

dramatically disparate questioning of black and white

prospective jurors at the sixth trial, and (4) the prosecu-

tor’s proffered reasons for striking one black juror (Car-

olyn Wright) while allowing other similarly situated white

jurors to serve on the jury at the sixth trial. We address

each in turn.

A

First, we consider the relevant history of the case.

Recall that in Swain, the Court held that a defendant may

prove racial discrimination by establishing a historical

pattern of racial exclusion of jurors in the jurisdiction in

question. Indeed, under Swain, that was the only way

that a defendant could make out a claim that the State

discriminated on the basis of race in the use of peremptory

challenges.

In Batson, the Court ruled that Swain had imposed too

heavy a burden on defendants seeking to prove that a

prosecutor had used peremptory strikes in a racially dis-

criminatory manner. Batson lowered the evidentiary

burden for defendants to contest prosecutors’ use of per-

emptory strikes and made clear that demonstrating a

history of discriminatory strikes in past cases was not

necessary.

In doing so, however, Batson did not preclude defend-

ants from still using the same kinds of historical evidence

that Swain had allowed defendants to use to support a

claim of racial discrimination. Most importantly for pre-

sent purposes, after Batson, the trial judge may still con-

sider historical evidence of the State’s discriminatory

peremptory strikes from past trials in the jurisdiction, just

20 FLOWERS v. MISSISSIPPI

Opinion of the Court

as Swain had allowed. After Batson, the defendant may

still cast Swain’s “wide net” to gather “ ‘relevant’ ” evi-

dence. Miller-El II, 545 U. S., at 239–240. A defendant

may rely on “all relevant circumstances.” Batson, 476

U. S., at 96–97.

Here, our review of the history of the prosecutor’s per-

emptory strikes in Flowers’ first four trials strongly sup-

ports the conclusion that his use of peremptory strikes in

Flowers’ sixth trial was motivated in substantial part by

discriminatory intent. (Recall that there is no record

evidence from the fifth trial regarding the race of the

prospective jurors.)

The numbers speak loudly. Over the course of the first

four trials, there were 36 black prospective jurors against

whom the State could have exercised a peremptory strike.

The State tried to strike all 36. The State used its avail-

able peremptory strikes to attempt to strike every single

black prospective juror that it could have struck. (At oral

argument in this Court, the State acknowledged that

statistic. Tr. of Oral Arg. 32.) Not only did the State’s use

of peremptory strikes in Flowers’ first four trials reveal a

blatant pattern of striking black prospective jurors, the

Mississippi courts themselves concluded on two separate

occasions that the State violated Batson. In Flowers’

second trial, the trial court concluded that the State dis-

criminated against a black juror. Specifically, the trial

court determined that one of the State’s proffered rea-

sons—that the juror had been inattentive and was nod-

ding off during jury selection—for striking that juror was

false, and the trial court therefore sustained Flowers’

Batson challenge. In Flowers’ next trial—his third trial—

the prosecutor used all 15 of its peremptories to strike 15

black prospective jurors. The lead opinion of the Missis-

sippi Supreme Court stated: “The instant case presents us

with as strong a prima facie case of racial discrimination

as we have ever seen in the context of a Batson challenge.”

Cite as: 588 U. S. ____ (2019) 21

Opinion of the Court

Flowers, 947 So. 2d, at 935. The opinion further stated

that “the State engaged in racially discriminatory practices

during the jury selection process” and that the “case

evinces an effort by the State to exclude African-

Americans from jury service.” Id., at 937, 939.

To summarize the most relevant history: In Flowers’

first trial, the prosecutor successfully used peremptory

strikes against all of the black prospective jurors. Flowers

faced an all-white jury. In Flowers’ second trial, the pros-

ecutor tried again to strike all of the black prospective

jurors, but the trial court decided that the State could not

strike one of those jurors. The jury consisted of 11 white

jurors and 1 black juror. In Flowers’ third trial, there

were 17 black prospective jurors. The prosecutor used 15

out of 15 peremptory strikes against black prospective

jurors. After one black juror was struck for cause and the

prosecutor ran out of strikes, one black juror remained.

The jury again consisted of 11 white jurors and 1 black

juror. In Flowers’ fourth trial, the prosecutor again used

11 out of 11 peremptory strikes against black prospective

jurors. Because of the large number of black prospective

jurors at the trial, the prosecutor ran out of peremptory

strikes before it could strike all of the black prospective

jurors. The jury for that trial consisted of seven white

jurors and five black jurors, and the jury was unable to

reach a verdict. To reiterate, there is no available infor-

mation about the race of prospective jurors in the fifth

trial. The jury for that trial consisted of nine white jurors

and three black jurors, and the jury was unable to reach a

verdict.

Stretching across Flowers’ first four trials, the State

employed its peremptory strikes to remove as many black

prospective jurors as possible. The State appeared to

proceed as if Batson had never been decided. The State’s

relentless, determined effort to rid the jury of black indi-

viduals strongly suggests that the State wanted to try

22 FLOWERS v. MISSISSIPPI

Opinion of the Court

Flowers before a jury with as few black jurors as possible,

and ideally before an all-white jury. The trial judge was

aware of the history. But the judge did not sufficiently

account for the history when considering Flowers’ Batson

claim.

The State’s actions in the first four trials necessarily

inform our assessment of the State’s intent going into

Flowers’ sixth trial. We cannot ignore that history. We

cannot take that history out of the case.

B

We turn now to the State’s strikes of five of the six black

prospective jurors at Flowers’ sixth trial, the trial at issue

here. As Batson noted, a “ ‘pattern’ of strikes against black

jurors included in the particular venire might give rise to

an inference of discrimination.” 476 U. S., at 97.

Flowers’ sixth trial occurred in June 2010. At trial, 26

prospective jurors were presented to potentially serve on

the jury. Six of the prospective jurors were black. The

State accepted one black prospective juror—Alexander

Robinson. The State struck the other five black prospec-

tive jurors—Carolyn Wright, Tashia Cunningham, Edith

Burnside, Flancie Jones, and Dianne Copper. The result-

ing jury consisted of 11 white jurors and 1 black juror.

The State’s use of peremptory strikes in Flowers’ sixth

trial followed the same pattern as the first four trials, with

one modest exception: It is true that the State accepted

one black juror for Flowers’ sixth trial. But especially

given the history of the case, that fact alone cannot insu-

late the State from a Batson challenge. In Miller-El II,

this Court skeptically viewed the State’s decision to accept

one black juror, explaining that a prosecutor might do so

in an attempt “to obscure the otherwise consistent pattern

of opposition to” seating black jurors. 545 U. S., at 250.

The overall record of this case suggests that the same

tactic may have been employed here. In light of all of the

Cite as: 588 U. S. ____ (2019) 23

Opinion of the Court

circumstances here, the State’s decision to strike five of

the six black prospective jurors is further evidence sug-

gesting that the State was motivated in substantial part

by discriminatory intent.

C

We next consider the State’s dramatically disparate

questioning of black and white prospective jurors in the

jury selection process for Flowers’ sixth trial. As Batson

explained, “the prosecutor’s questions and statements

during voir dire examination and in exercising his chal-

lenges may support or refute an inference of discrimina-

tory purpose.” 476 U. S., at 97.

The questioning process occurred through an initial

group voir dire and then more in-depth follow-up question-

ing by the prosecutor and defense counsel of individual

prospective jurors. The State asked the five black pro-

spective jurors who were struck a total of 145 questions.

By contrast, the State asked the 11 seated white jurors a

total of 12 questions. On average, therefore, the State

asked 29 questions to each struck black prospective juror.

The State asked an average of one question to each seated

white juror.

One can slice and dice the statistics and come up with

all sorts of ways to compare the State’s questioning of

excluded black jurors with the State’s questioning of the

accepted white jurors. But any meaningful comparison

yields the same basic assessment: The State spent far

more time questioning the black prospective jurors than

the accepted white jurors.

The State acknowledges, as it must under our prece-

dents, that disparate questioning can be probative of

discriminatory intent. See Miller-El v. Cockrell, 537 U. S.

322, 331–332, 344–345 (2003) (Miller-El I). As Miller-El I

stated, “if the use of disparate questioning is determined

by race at the outset, it is likely [that] a justification for a

24 FLOWERS v. MISSISSIPPI

Opinion of the Court

strike based on the resulting divergent views would be

pretextual. In this context the differences in the questions

posed by the prosecutors are some evidence of purposeful

discrimination.” Id., at 344.

But the State here argues that it questioned black and

white prospective jurors differently only because of differ-

ences in the jurors’ characteristics. The record refutes

that explanation.

For example, Dianne Copper was a black prospective

juror who was struck. The State asked her 18 follow-up

questions about her relationships with Flowers’ family and

with witnesses in the case. App. 188–190. Pamela Ches-

teen was a white juror whom the State accepted for the

jury. Although the State asked questions of Chesteen

during group voir dire, the State asked her no individual

follow-up questions about her relationships with Flowers’

family, even though the State was aware that Chesteen

knew several members of Flowers’ family. Compare id., at

83, with id., at 111. Similarly, the State asked no individ-

ual follow-up questions to four other white prospective

jurors who, like Dianne Copper, had relationships with

defense witnesses, even though the State was aware of

those relationships. Those white prospective jurors were

Larry Blaylock, Harold Waller, Marcus Fielder, and Bobby

Lester.

Likewise, the State conducted disparate investigations

of certain prospective jurors. Tashia Cunningham, who is

black, stated that she worked with Flowers’ sister, but

that the two did not work closely together. To try to dis-

prove that statement, the State summoned a witness to

challenge Cunningham’s testimony. Id., at 148–150. The

State apparently did not conduct similar investigations of

white prospective jurors.

It is certainly reasonable for the State to ask follow-up

questions or to investigate the relationships of jurors to

the victims, potential witnesses, and the like. But white

Cite as: 588 U. S. ____ (2019) 25

Opinion of the Court

prospective jurors who were acquainted with the Flowers’

family or defense witnesses were not questioned extensively

by the State or investigated. White prospective jurors

who admitted that they or a relative had been convicted of

a crime were accepted without apparent further inquiry by

the State. The difference in the State’s approaches to

black and white prospective jurors was stark.

Why did the State ask so many more questions—and

conduct more vigorous inquiry—of black prospective jurors

than it did of white prospective jurors? No one can know

for certain. But this Court’s cases explain that disparate

questioning and investigation of prospective jurors on the

basis of race can arm a prosecutor with seemingly race-

neutral reasons to strike the prospective jurors of a par-

ticular race. See Miller-El I, 537 U. S., at 331–332, 344–

345. In other words, by asking a lot of questions of the

black prospective jurors or conducting additional inquiry

into their backgrounds, a prosecutor can try to find some

pretextual reason—any reason—that the prosecutor can

later articulate to justify what is in reality a racially moti-

vated strike. And by not doing the same for white pro-

spective jurors, by not asking white prospective jurors

those same questions, the prosecutor can try to distort the

record so as to thereby avoid being accused of treating

black and white jurors differently. Disparity in question-

ing and investigation can produce a record that says little

about white prospective jurors and is therefore resistant to

characteristic-by-characteristic comparisons of struck

black prospective jurors and seated white jurors. Prosecu-

tors can decline to seek what they do not want to find

about white prospective jurors.

A court confronting that kind of pattern cannot ignore

it. The lopsidedness of the prosecutor’s questioning and

inquiry can itself be evidence of the prosecutor’s objective

as much as it is of the actual qualifications of the black

and white prospective jurors who are struck or seated.

26 FLOWERS v. MISSISSIPPI

Opinion of the Court

The prosecutor’s dramatically disparate questioning of

black and white prospective jurors—at least if it rises to a

certain level of disparity—can supply a clue that the pros-

ecutor may have been seeking to paper the record and

disguise a discriminatory intent. See ibid.

To be clear, disparate questioning or investigation alone

does not constitute a Batson violation. The disparate

questioning or investigation of black and white prospective

jurors may reflect ordinary race-neutral considerations.

But the disparate questioning or investigation can also,

along with other evidence, inform the trial court’s evalua-

tion of whether discrimination occurred.

Here, along with the historical evidence we described

above from the earlier trials, as well as the State’s striking

of five of six black prospective jurors at the sixth trial, the

dramatically disparate questioning and investigation of

black prospective jurors and white prospective jurors at

the sixth trial strongly suggests that the State was moti-

vated in substantial part by a discriminatory intent. We

agree with the observation of the dissenting justices of the

Mississippi Supreme Court: The “numbers described above

are too disparate to be explained away or categorized

as mere happenstance.” 240 So. 3d, at 1161 (opinion of

King, J.).

D

Finally, in combination with the other facts and circum-

stances in this case, the record of jury selection at the

sixth trial shows that the peremptory strike of at least one

of the black prospective jurors (Carolyn Wright) was moti-

vated in substantial part by discriminatory intent. As this

Court has stated, the Constitution forbids striking even a

single prospective juror for a discriminatory purpose. See

Foster, 578 U. S., at ___ (slip op., at 9).

Comparing prospective jurors who were struck and not

struck can be an important step in determining whether a

Cite as: 588 U. S. ____ (2019) 27

Opinion of the Court

Batson violation occurred. See Snyder, 552 U. S., at 483–

484; Miller-El II, 545 U. S., at 241. The comparison can

suggest that the prosecutor’s proffered explanations for

striking black prospective jurors were a pretext for dis-

crimination. When a prosecutor’s “proffered reason for strik-

ing a black panelist applies just as well to an otherwise-

similar nonblack panelist who is permitted to serve,

that is evidence tending to prove purposeful discrimina-

tion.” Foster, 578 U. S., at ___ (slip op., at 23) (quotation

altered). Although a defendant ordinarily will try to iden-

tify a similar white prospective juror whom the State did

not strike, a defendant is not required to identify an iden-

tical white juror for the side-by-side comparison to be

suggestive of discriminatory intent. Miller-El II, 545

U. S., at 247, n. 6.

In this case, Carolyn Wright was a black prospective

juror who said she was strongly in favor of the death

penalty as a general matter. And she had a family mem-

ber who was a prison security guard. Yet the State exer-

cised a peremptory strike against Wright. The State said

it struck Wright in part because she knew several defense

witnesses and had worked at Wal-Mart where Flowers’

father also worked.

Winona is a small town. Wright had some sort of con-

nection to 34 people involved in Flowers’ case, both on the

prosecution witness side and the defense witness side.

See, 240 So. 3d, at 1126. But three white prospective

jurors—Pamela Chesteen, Harold Waller, and Bobby

Lester—also knew many individuals involved in the case.

Chesteen knew 31 people, Waller knew 18 people, and

Lester knew 27 people. See ibid. Yet as we explained

above, the State did not ask Chesteen, Waller, and Lester

individual follow-up questions about their connections to

witnesses. That is a telling statistic. If the State were

concerned about prospective jurors’ connections to wit-

nesses in the case, the State presumably would have used

28 FLOWERS v. MISSISSIPPI

Opinion of the Court

individual questioning to ask those potential white jurors

whether they could remain impartial despite their rela-

tionships. A “State’s failure to engage in any meaningful

voir dire examination on a subject the State alleges it is

concerned about is evidence suggesting that the explana-

tion is a sham and a pretext for discrimination.” Miller-El

II, 545 U. S., at 246 (internal quotation marks omitted).

Both Carolyn Wright and Archie Flowers, who is the

defendant’s father, had worked at the local Wal-Mart. But

there was no evidence that they worked together or were

close in any way. Importantly, the State did not ask indi-

vidual follow-up questions to determine the nature of their

relationship. And during group questioning, Wright said

she did not know whether Flowers’ father still worked at

Wal-Mart, which “supports an inference that Wright and

Flowers did not have a close working relationship.” 240

So. 3d, at 1163 (King, J., dissenting). And white prospec-

tive jurors also had relationships with members of Flow-

ers’ family. Indeed, white prospective juror Pamela Ches-

teen stated that she had provided service to Flowers’

family members at the bank and that she knew several

members of the Flowers family. App. 83. Likewise, white

prospective juror Bobby Lester worked at the same bank

and also encountered Flowers’ family members. Id., at 86.

Although Chesteen and Lester were questioned during

group voir dire, the State did not ask Chesteen or Lester

individual follow-up questions in order to explore the

depth of their relationships with Flowers’ family. And

instead of striking those jurors, the State accepted them

for the jury. To be sure, both Chesteen and Lester were

later struck by the defense. But the State’s acceptance of

Chesteen and Lester necessarily informs our assessment

of the State’s intent in striking similarly situated black

prospective jurors such as Wright.

The State also noted that Wright had once been sued by

Tardy Furniture for collection of a debt 13 years earlier.

Cite as: 588 U. S. ____ (2019) 29

Opinion of the Court

Id., at 209. Wright said that the debt was paid off and

that it would not affect her evaluation of the case. Id., at

71, 90–91. The victims in this case worked at Tardy Fur-

niture. But the State did not explain how Wright’s 13-

year-old, paid-off debt to Tardy Furniture could affect her

ability to serve impartially as a juror in this quadruple

murder case. The “State’s unsupported characterization of

the lawsuit is problematic.” 240 So. 3d, at 1163 (King, J.,

dissenting). In any event, the State did not purport to rely

on that reason alone as the basis for the Wright strike,

and the State in this Court does not rely on that reason

alone in defending the Wright strike.

The State also explained that it exercised a peremptory

strike against Wright because she had worked with one of

Flowers’ sisters. App. 209. That was incorrect. The trial

judge immediately stated as much. Id., at 218–219. But

incorrect statements of that sort may show the State’s

intent: When a prosecutor misstates the record in explain-

ing a strike, that misstatement can be another clue show-

ing discriminatory intent.

That incorrect statement was not the only one made by

the prosecutor. The State made apparently incorrect

statements to justify the strikes of black prospective jurors

Tashia Cunningham, Edith Burnside, and Flancie Jones.

The State contradicted Cunningham’s earlier statement

that she had only a working relationship with Flowers’

sister by inaccurately asserting that Cunningham and

Flowers’ sister were close friends. See id., at 84, 220. The

State asserted that Burnside had tried to cover up a Tardy

Furniture suit. See id., at 226. She had not. See id., 70–

71. And the State explained that it struck Jones in part

because Jones was Flowers’ aunt. See id., at 229. That,

too, was not true. See id., at 86–88. The State’s pattern of

factually inaccurate statements about black prospective

jurors suggests that the State intended to keep black

prospective jurors off the jury. See Foster, 578 U. S., at

30 FLOWERS v. MISSISSIPPI

Opinion of the Court

___ (slip op., at 23); Miller-El II, 545 U. S., at 240, 245.

To be sure, the back and forth of a Batson hearing can

be hurried, and prosecutors can make mistakes when

providing explanations. That is entirely understandable,

and mistaken explanations should not be confused with

racial discrimination. But when considered with other

evidence of discrimination, a series of factually inaccurate

explanations for striking black prospective jurors can be

telling. So it is here.

The side-by-side comparison of Wright to white prospec-

tive jurors whom the State accepted for the jury cannot be

considered in isolation in this case. In a different context,

the Wright strike might be deemed permissible. But we

must examine the whole picture. Our disagreement with

the Mississippi courts (and our agreement with Justice

King’s dissent in the Mississippi Supreme Court) largely

comes down to whether we look at the Wright strike in

isolation or instead look at the Wright strike in the context

of all the facts and circumstances. Our precedents require

that we do the latter. As Justice King explained in his

dissent in the Mississippi Supreme Court, the Mississippi

courts appeared to do the former. 240 So. 3d, at 1163–

1164. As we see it, the overall context here requires skep-

ticism of the State’s strike of Carolyn Wright. We must

examine the Wright strike in light of the history of the

State’s use of peremptory strikes in the prior trials, the

State’s decision to strike five out of six black prospective

jurors at Flowers’ sixth trial, and the State’s vastly dis-

parate questioning of black and white prospective jurors

during jury selection at the sixth trial. We cannot just

look away. Nor can we focus on the Wright strike in isola-

tion. In light of all the facts and circumstances, we con-

clude that the trial court clearly erred in ruling that the

State’s peremptory strike of Wright was not motivated in

substantial part by discriminatory intent.

Cite as: 588 U. S. ____ (2019) 31

Opinion of the Court

* * *

In sum, the State’s pattern of striking black prospective

jurors persisted from Flowers’ first trial through Flowers’

sixth trial. In the six trials combined, the State struck 41

of the 42 black prospective jurors it could have struck. At

the sixth trial, the State struck five of six. At the sixth

trial, moreover, the State engaged in dramatically dispar-

ate questioning of black and white prospective jurors. And

it engaged in disparate treatment of black and white

prospective jurors, in particular by striking black prospec-

tive juror Carolyn Wright.

To reiterate, we need not and do not decide that any one

of those four facts alone would require reversal. All that

we need to decide, and all that we do decide, is that all of

the relevant facts and circumstances taken together estab-

lish that the trial court at Flowers’ sixth trial committed

clear error in concluding that the State’s peremptory

strike of black prospective juror Carolyn Wright was not

motivated in substantial part by discriminatory intent. In

reaching that conclusion, we break no new legal ground.

We simply enforce and reinforce Batson by applying it to

the extraordinary facts of this case.

We reverse the judgment of the Supreme Court of Mis-

sissippi, and we remand the case for further proceedings

not inconsistent with this opinion.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–9572

_________________

CURTIS GIOVANNI FLOWERS, PETITIONER

v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSISSIPPI

[June 21, 2019]

JUSTICE ALITO, concurring.

As the Court takes pains to note, this is a highly un-

usual case. Indeed, it is likely one of a kind. In 1996, four

defenseless victims, three white and one black, were

slaughtered in a furniture store in a small town in Mont-

gomery County, Mississippi, a jurisdiction with fewer than

11,000 inhabitants. One of the victims was the owner of

the store, which was widely frequented by residents of the

community. The person prosecuted for this crime, peti-

tioner Curtis Flowers, an African-American, comes from a

local family whose members make up a gospel group and

have many community ties.

By the time jury selection began in the case now before

us, petitioner had already been tried five times for com-

mitting that heinous and inflammatory crime. Three

times, petitioner was convicted and sentenced to death,

but all three convictions were reversed by the State Su-

preme Court. Twice, the jurors could not reach a unani-

mous verdict. In all of the five prior trials, the State was

represented by the same prosecutor, and as the Court

recounts, many of those trials were marred by racial dis-

crimination in the selection of jurors and prosecutorial

misconduct. Nevertheless, the prosecution at the sixth

trial was led by the same prosecutor, and the case was

tried in Montgomery County where, it appears, a high

2 FLOWERS v. MISSISSIPPI

ALITO, J., concurring

percentage of the potential jurors have significant connec-

tions to either petitioner, one or more of the victims, or

both.

These connections and the community’s familiarity with

the case were bound to complicate a trial judge’s task in

trying to determine whether the prosecutor’s asserted

reason for striking a potential juror was a pretext for

racial discrimination, and that is just what occurred.

Petitioner argues that the prosecution improperly struck

five black jurors, but for each of the five, the prosecutor

gave one or more reasons that were not only facially legit-

imate but were of a nature that would be of concern to a

great many attorneys. If another prosecutor in another

case in a larger jurisdiction gave any of these reasons for

exercising a peremptory challenge and the trial judge

credited that explanation, an appellate court would proba-

bly have little difficulty affirming that finding. And that

result, in all likelihood, would not change based on factors

that are exceedingly difficult to assess, such as the num-

ber of voir dire questions the prosecutor asked different

members of the venire.

But this is not an ordinary case, and the jury selection

process cannot be analyzed as if it were. In light of all

that had gone before, it was risky for the case to be tried

once again by the same prosecutor in Montgomery County.

Were it not for the unique combinations of circumstances

present here, I would have no trouble affirming the deci-

sion of the Supreme Court of Mississippi, which conscien-

tiously applied the legal standards applicable in less unu-

sual cases. But viewing the totality of the circumstances

present here, I agree with the Court that petitioner’s

capital conviction cannot stand.

Cite as: 588 U. S. ____ (2019) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–9572

_________________

CURTIS GIOVANNI FLOWERS, PETITIONER

v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSISSIPPI

[June 21, 2019]

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as

to Parts I, II, and III, dissenting.

On a summer morning in July 1996 in Winona, Missis-

sippi, 16-year-old Derrick “Bobo” Stewart arrived for the

second day of his first job. He and Robert Golden had

been hired by the Tardy Furniture store to replace peti-

tioner Curtis Flowers, who had been fired a few days prior

and had his paycheck docked for damaging store property

and failing to show up for work. Another employee, Sam

Jones, Jr., planned to teach Stewart and Golden how to

properly load furniture.

On Jones’ arrival, he found a bloodbath. Store owner

Bertha Tardy and bookkeeper Carmen Rigby had each

been murdered with a single gunshot to the head. Golden

had been murdered with two gunshots to the head, one at

very close range. And Stewart had been shot, execution

style, in the back of his head. When Jones entered the

store, Stewart was fighting for every breath, blood pouring

over his face. He died a week later.

On the morning of the murders, a .380-caliber pistol was

reported stolen from the car of Flowers’ uncle, and a wit-

ness saw Flowers by that car before the shootings. Offic-

ers recovered .380-caliber bullets at Tardy Furniture and

matched them to bullets fired by the stolen pistol. Gun-

shot residue was found on Flowers’ hand a few hours after

2 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

the murders. A bloody footprint found at the scene

matched both the size of Flowers’ shoes and the shoe style

that he was seen wearing on the morning of the murders.

Multiple witnesses placed Flowers near Tardy Furniture

that morning, and Flowers provided inconsistent accounts

of his whereabouts. Several hundred dollars were missing

from the store’s cash drawer, and $235 was found hidden

in Flowers’ headboard after the murders. 240 So. 3d 1082,

1092–1095, 1107 (Miss. 2017).

In the 2010 trial at issue here, Flowers was convicted of

four counts of murder and sentenced to death. Applying

heightened scrutiny, the state courts found that the evi-

dence was more than sufficient to convict Flowers, that he

was tried by an impartial jury, and that the State did not

engage in purposeful race discrimination in jury selection

in violation of the Equal Protection Clause. Id., at 1096,

1113, 1139, 1135.

The Court today does not dispute that the evidence was

sufficient to convict Flowers or that he was tried by an

impartial jury. Instead, the Court vacates Flowers’ con-

victions on the ground that the state courts clearly erred

in finding that the State did not discriminate based on

race when it struck Carolyn Wright from the jury.

The only clear errors in this case are committed by

today’s majority. Confirming that we never should have

taken this case, the Court almost entirely ignores—and

certainly does not refute—the race-neutral reasons given

by the State for striking Wright and four other black

prospective jurors. Two of these prospective jurors knew

Flowers’ family and had been sued by Tardy Furniture—

the family business of one of the victims and also of one of

the trial witnesses. One refused to consider the death

penalty and apparently lied about working side-by-side

with Flowers’ sister. One was related to Flowers and lied

about her opinion of the death penalty to try to get out of

jury duty. And one said that because she worked with two

Cite as: 588 U. S. ____ (2019) 3

THOMAS, J., dissenting

of Flowers’ family members, she might favor him and

would not consider only the evidence presented. The state

courts’ findings that these strikes were not based on race

are the opposite of clearly erroneous; they are clearly

correct. The Court attempts to overcome the evident race

neutrality of jury selection in this trial by pointing to a

supposed history of race discrimination in previous trials.

But 49 of the State’s 50 peremptory strikes in Flowers’

previous trials were race neutral. The remaining strike

occurred 20 years ago in a trial involving only one of Flow-

ers’ crimes and was never subject to appellate review; the

majority offers no plausible connection between that strike

and Wright’s.

Today’s decision distorts the record of this case, eviscer-

ates our standard of review, and vacates four murder

convictions because the State struck a juror who would

have been stricken by any competent attorney. I dissent.

I

Twice now, the Court has made the mistake of granting

this case. The first time, this case was one of three that

the Court granted, vacated, and remanded in light of

Foster v. Chatman, 578 U. S. ___ (2016), which involved a

challenge under Batson v. Kentucky, 476 U. S. 79 (1986).

See Flowers v. Mississippi, 579 U. S. ___ (2016). But

“Foster did not change or clarify the Batson rule in any

way,” so remanding was senseless and unproductive:

“Without pointing out any errors in the State Supreme

Court’s analysis” or bothering to explain how Foster was

relevant, “the [Court] simply order[ed] the State Supreme

Court to redo its work.” Flowers, 579 U. S., at ___, ___

(ALITO, J., dissenting) (slip op., at 1, 4).

Unsurprisingly, no one seemed to understand Foster’s

relevance on remand. The defendants simply “re-urge[d]

the arguments [they] had raised” before, and all three

courts promptly reinstated their prior decisions—

4 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

confirming the impropriety of the entire enterprise. 240

So. 3d, at 1117–1118, 1153; State v. Williams, 2013–0283

(La. App. 4 Cir. 9/7/16), 199 So. 3d 1222, 1230, 1238

(pointing out that “Foster did not change the applicable

principles for analyzing a Batson claim”); Ex parte Floyd,

227 So. 3d 1, 13 (Ala. 2016).

Flowers then filed another petition for certiorari, raising

the same question as his first petition: whether a prosecu-

tor’s history of Batson violations is irrelevant when as-

sessing the credibility of his proffered explanations for

peremptory strikes. Under our ordinary certiorari crite-

ria, we would never review this issue. There is no dis-

agreement among the lower courts on this question, and the

question is not implicated by this case—the Mississippi

Supreme Court did consider the prosecutor’s history, see

240 So. 3d, at 1122–1124, 1135, and, to the extent there is

a relevant history here, it is one of race-neutral strikes,

see Part III, infra.

Nonetheless, Flowers’ question presented at least had

the virtue of being a question of law that could affect

Batson’s application. Unchastened by its Foster remand,

however, the Court granted certiorari and changed the

question presented to ask merely whether the Mississippi

Supreme Court had misapplied Batson in this particular

case. In other words, the Court tossed aside any pretense

of resolving a legal question so it could reconsider the

factual findings of the state courts. In so doing, the Court

disregards the rule that “[w]e do not grant a certiorari to

review evidence and discuss specific facts,” United States

v. Johnston, 268 U. S. 220, 227 (1925), particularly where

there are “ ‘concurrent findings of fact by two courts be-

low,’ ” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 841

(1996).

The Court does not say why it disregarded our tradi-

tional criteria to take this case. It is not as if the Court

lacked better options. See Gee v. Planned Parenthood of

Cite as: 588 U. S. ____ (2019) 5

THOMAS, J., dissenting

Gulf Coast, Inc., 586 U. S. ___ (2018) (THOMAS, J., dissent-

ing from denial of certiorari). Perhaps the Court lacked

confidence in the proceedings below. Flowers’ case, like

the others needlessly remanded in light of Foster, comes to

us from a state court in the South. These courts are “fa-

miliar objects of the Court’s scorn,” United States v. Wind-

sor, 570 U. S. 744, 795 (2013) (Scalia, J., dissenting),

especially in cases involving race.1

Or perhaps the Court granted certiorari because the

case has received a fair amount of media attention. But if

so, the Court’s action only encourages the litigation and

relitigation of criminal trials in the media, to the potential

detriment of all parties—including defendants. The media

often seeks “to titillate rather than to educate and inform.”

Chandler v. Florida, 449 U. S. 560, 580 (1981). And the

Court has “long recognized that adverse publicity can

endanger the ability of a defendant to receive a fair trial,”

by “influenc[ing] public opinion” and “inform[ing] potential

jurors of . . . information wholly inadmissible at the actual

trial.” Gannett Co. v. DePasquale, 443 U. S. 368, 378

(1979); e.g., Sheppard v. Maxwell, 384 U. S. 333, 356–363

(1966); Irvin v. Dowd, 366 U. S. 717, 725–728 (1961).

Media attention can produce other dangers, too, including

discouraging reluctant witnesses from testifying and

encouraging eager witnesses, prosecutors, defense counsel,

and even judges to perform for the audience. See Estes v.

Texas, 381 U. S. 532, 591 (1965) (Harlan, J., concurring).

Any appearance that this Court gives closer scrutiny to

cases with significant media attention will only exacerbate

these problems and undermine the fairness of criminal

trials.

——————

1 E.g.,

Tharpe v. Sellers, 583 U. S. ___ (2018) (per curiam); Buck v.

Davis, 580 U. S. ___ (2017); Foster v. Chatman, 578 U. S. ___ (2016);

In re Davis, 557 U. S. 952 (2009); Snyder v. Louisiana, 552 U. S. 472

(2008).

6 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Whatever the Court’s reason for taking this case, we

should have dismissed it as improvidently granted. If the

Court wanted to simply review the state courts’ applica-

tion of Batson, it at least could have had the decency to do

so the first time around. Instead, the Court wasted the

State’s, defendant’s, and lower court’s time and re-

sources—to say nothing of prolonging the ongoing

“ ‘nightmare’ ” of Bobo Stewart’s and the other victims’

families as they await justice. Tr. 3268–3272. And now,

the majority considers it a point of pride to “break no new

legal ground,” ante, at 3, 31, and proceeds to second-guess

the factual findings of two different courts on matters

wholly collateral to the merits of the conviction. If nothing

else, its effort proves the reason behind the rule that we do

not take intensively fact-specific cases.

II

The majority’s opinion is so manifestly incorrect that I

must proceed to the merits. Flowers presented no evi-

dence whatsoever of purposeful race discrimination by the

State in selecting the jury during the trial below. Each of

the five challenged strikes was amply justified on race-

neutral grounds timely offered by the State at the Batson

hearing. None of the struck black jurors was remotely

comparable to the seated white jurors. And nothing else

about the State’s conduct at jury selection—whether trivial

mistakes of fact or supposed disparate questioning—

provides any evidence of purposeful discrimination based

on race.

A

1

The majority focuses its discussion on potential juror

Carolyn Wright, but the State offered multiple race-

neutral reasons for striking her. To begin, Wright lost a

lawsuit to Tardy Furniture soon after the murders, and a

Cite as: 588 U. S. ____ (2019) 7

THOMAS, J., dissenting

garnishment order was issued against her. App. 71–72;

Record 2697. Noting that Wright claimed the lawsuit

“would not affect her evaluation of the case,” the majority

questions how this lawsuit “could affect [Wright’s] ability

to serve impartially.” Ante, at 29. But the potential bias

is obvious. The “victims in this case” did not merely

“wor[k] at Tardy Furniture.” Ibid. At the time of the

murders, Bertha Tardy owned Tardy Furniture. Follow-

ing her murder, her daughter and son-in-law succeeded

her as owners; they sued Wright, and the daughter testi-

fied at this trial. See App. 71, 209; 240 So. 3d, at 1093; Tr.

1656. Neither the trial court nor Flowers suffered from

any confusion as to how losing a lawsuit to a trial witness

and daughter of a victim might affect a juror. See App.

280, and n. 2; Recording of Oral Arg. 13:40–13:47 in No.

2010–DP–01328–SCT (Miss., July 14, 2014) (Flowers’

counsel arguing that “ ‘the potential jurors who were

sued by’ ” Tardy had more “ ‘basis for being upset with

her’ ” than Flowers did), https://judicial.mc.edu/case.

php?id=1122570. Indeed, a portion of the daughter’s

testimony focused on obtaining judgments and garnish-

ments against customers who did not pay off their ac-

counts. Tr. 2672–2674.

Faced with this strong race-neutral reason for striking

Wright, the majority first suggests that the State did not

adequately explain how the lawsuit could affect Wright.

But it is obvious, and in any event the majority is wrong—

the State did spell it out. See App. 209 (“ ‘She was sued by

Tardy Furniture, after these murders, by the family mem-

bers that will be testifying here today’ ”). Moreover, Flow-

ers did not ask for further explanation, instead claiming

that “ ‘there is no evidence of an actual lawsuit,’ ” id., at

211, even though Wright had admitted it, id., at 71–72.

The State then entered into the record a copy of the judg-

ment containing a garnishment amount. Id., at 215; see

Record 2697.

8 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Second, the majority quotes the dissent below for the

proposition that the “ ‘State’s unsupported characteriza-

tion of the lawsuit is problematic.’ ” Ante, at 29. But the

Court neglects to mention that the dissent’s basis for this

statement was that “[n]othing in the record supports the

contention that Wright’s wages were garnished.” 240 So.

3d, at 1162 (King, J., dissenting). Again, that is incorrect.

See Record 2697.

Finally, the majority dismisses the lawsuit’s significance

because “the State did not purport to rely on that reason

alone as the basis for the Wright strike.” Ante, at 29

(emphasis added). But the fact that the State had addi-

tional race-neutral reasons to strike Wright does not make

the lawsuit any less of a race-neutral reason. As the State

explained, Wright knew nearly every defense witness and

had worked with Flowers’ father at what the trial court

described as the “ ‘smallest Wal-Mart . . . that I know in

existence.’ ” App. 218. The majority tries to minimize this

connection by pointing out that “Wright said she did not

know whether Flowers’ father still worked at Wal-Mart.”

Ante, at 28. That is understandable, given that Wright

testified that she no longer worked at the Wal-Mart. Tr.

782. The majority misses the point: Wright had worked in

relatively close proximity with the defendant’s father.2

2

The majority, while admonishing trial courts to “consider

the prosecutor’s race-neutral explanations,” ante, at 17,

completely ignores the State’s race-neutral explanations

for striking the other four black jurors.

Tashia Cunningham stated repeatedly that she

——————

2 The majority also complains that the State did not ask enough “follow-

up questions” of Wright. Ante, at 28. I see no reason why the State

needed more information. Besides, if the State had asked more ques-

tions, the majority would complain that the State engaged in “dramati-

cally disparate” questioning of Wright.

Cite as: 588 U. S. ____ (2019) 9

THOMAS, J., dissenting

“ ‘d[id]n’t believe in the death penalty’ ” and would “ ‘not

even consider’ ” it. App. 129; see 2d Supp. Record 256b.

When pressed by the trial court on this point, she vacillated,

saying that she “ ‘d[id]n’t think’ ” she could consider the

death penalty but then, “ ‘I might. I might. I don’t know.

I might.’ ” App. 130. Opposition to the death penalty is

plainly a valid, race-neutral reason for a strike. Moreover,

Cunningham knew Flowers’ sister, having worked with

her on an assembly line for several years. Id., at 83–85.

She testified that they did not work in close proximity, but

a supervisor testified that they actually worked “ ‘side by

side.’ ” Id., at 149–152. Both this apparent misstatement

and the fact that Cunningham worked with Flowers’ sister

are valid, race-neutral reasons.

Next, Edith Burnside knew Flowers personally. Flowers

had visited in her home, lived one street over, and played

basketball with her sons. Id., at 75, 79–80. Burnside also

testified repeatedly that she “ ‘could not judge anyone,’ ” no

“ ‘matter what the case was,’ ” id., at 69–70, 143–144, and

that her “ ‘problem with judging’ ” could “ ‘affect [her]

judgment’ ” here, id., at 144. Finally, she too was sued by

Tardy Furniture soon after the murders, and a garnish-

ment order was entered against her. See id., at 71, 141–

142; Tardy Furniture Co. v. Burnside, Civ. No. 1359 (Jus-

tice Ct. Montgomery Cty., Miss., June 23, 1997), Dkt. 13,

p. 553.

Next, Dianne Copper had worked with both Flowers’

father and his sister for “ ‘a year or two’ ” each. App. 77,

189, 234, 236. She agreed that because of these relation-

ships and others with various defense witnesses, she

might “ ‘lean toward’ ” Flowers and would be unable to

“ ‘come in here . . . with an open mind.’ ” Id., at 190; see

id., at 78. She also said that deciding the case on “ ‘the

evidence only’ ” would make her “ ‘uncomfortable.’ ” Id., at

191–192.

Finally, as to Flancie Jones, Flowers conceded below

10 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

that he “did not challenge [her] strike” and that “ ‘the

State’s bases for striking Jones appear to be race neu-

tral.’ ” Supp. Brief for Appellant in No. 2010–DP–01348–

SCT (Miss.), p. 20, n. 12. Because any argument as to

Jones “was not raised below, it is waived.” Sprietsma v.

Mercury Marine, 537 U. S. 51, 56, n. 4 (2002). Even if

Flowers had not waived this argument, this strike was

obviously supported by race-neutral reasons. Jones was

related to Flowers in several ways. See App. 73, 179. She

was late to court on multiple occasions. Id., at 180, 182.

On her juror questionnaire, she said she was “ ‘strongly

against the death penalty,’ ” but when asked about her

opposition, said, “ ‘I guess I’d say anything to get off ’ ” jury

duty. Id., at 181; see 2d Supp. Record 325b. She then

admitted that she was not necessarily “being truthful” on

her questionnaire but refused to provide her actual view

on the death penalty, saying, “ ‘I—really and truly . . .

don’t want to be here.’ ” App. 181–182.

3

In terms of race-neutral validity, these five strikes are

not remotely close calls. Each strike was supported by

multiple race-neutral reasons articulated by the State at

the Batson hearing and supported by the record. It makes

a mockery of Batson for this Court to tell prosecutors to

“provide race-neutral reasons for the strikes,” and to tell

trial judges to “consider the prosecutor’s race-neutral

explanations in light of all of the relevant facts and cir-

cumstances,” ante, at 17, and then completely ignore the

State’s reasons for four out of five strikes.

Only by ignoring these facts can the Court assert that

“the State’s decision to strike five of the six black prospec-

tive jurors is further evidence suggesting that the State

was motivated in substantial part by discriminatory in-

tent.” Ante, at 23. Putting aside the fact that the majority

has its numbers wrong (the State struck five of seven

Cite as: 588 U. S. ____ (2019) 11

THOMAS, J., dissenting

potential black jurors),3 the bare numbers are meaningless

outside the context of the reasons for the strikes. The

majority has no response whatsoever to the State’s race-

neutral explanations and, for four of the five strikes, does

not dispute the state courts’ conclusion that race played no

role at all. For Batson purposes, these strikes might as

well have been exercised against white jurors. Yet the

majority illegitimately counts them all against the State.

B

Given the multiple race-neutral reasons for the State’s

strikes, evidence of racial discrimination would have to be

overwhelming to show a Batson violation. The majority’s

evidence falls woefully short.

As the majority explains, “comparing prospective jurors

who were struck and not struck can be an important step

in determining whether a Batson violation occurred.”

Ante, at 26–27. For example, “[w]hen a prosecutor’s ‘prof-

fered reason for striking a black panelist applies just as

well to an otherwise-similar nonblack panelist who is

permitted to serve, that is evidence tending to prove pur-

poseful discrimination.’ ” Ante, at 27. By the same token,

a defendant’s failure to find any similarly-situated whites

permitted to serve tends to disprove purposeful discrimi-

nation. Here, neither the majority nor Flowers has identi-

fied any nonstruck white jurors remotely similar to any of

the struck black jurors.

The majority points to white jurors Pamela Chesteen

and Bobby Lester, who worked at the Bank of Winona and

therefore had interacted with several members of Flowers’

family as bank customers. By the majority’s lights, Ches-

——————

3 The majority ignores the fact that, after the initial Batson challenge,

the State tendered a black juror as an alternate instead of exercising

available peremptory strikes. The State also tendered the first black

juror available. This is hardly a “ ‘consistent pattern’ ” of strikes

against black jurors. Ante, at 22.

12 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

teen’s and Lester’s banker-customer relationship was the

same as Wright’s co-worker relationship with Flowers’

father. Ante, at 27–28. That comparison is untenable.

Lester testified that working at the bank meant he and

Chesteen “ ‘s[aw] everyone in town.’ ” App. 86. And as the

trial court explained, “a bank teller, who waits on custom-

ers at a bank,” has a “substantially different” relationship

from someone who “work[s] at the same business estab-

lishment with members of the defendant’s family.” Id., at

278; see id., at 236. The Mississippi Supreme Court

agreed that “a coworker relationship” and “employee/

customer relationship are distinguishable.” 240 So. 3d, at

1127. The majority mentions none of this, evidently rely-

ing on its superior knowledge of the banker-customer

relationships at the Bank of Winona.

The more relevant comparator to Chesteen and Lester is

Alexander Robinson, a black man who was a customer at a

store where Flowers’ brother worked. App. 82. The State

confirmed with Robinson that this relationship was “ ‘just

a working relationship’ ”—i.e., an employee-customer

relationship—and immediately thereafter clarified with

Chesteen and Lester that their relationships with Flowers’

family members was “ ‘like Mr. Robinson, just a working

relationship.’ ” Id., at 82–83, 85–86.4 The State then

tendered Robinson, Chesteen, and Lester as jurors. Id., at

203, 208. Later, the State would strike black jurors

Wright and Copper, who were both co-workers of members

of Flowers’ family. As the trial court understood, it is

“evident . . . that the prosecution utilized peremptory

strikes only against those individuals who actually worked

with, or who in the past had worked with, members of

Flowers’ family.” Id., at 278; see id., at 279.

——————

4 Thus, the majority is simply wrong to complain that the State failed

to ask Chesteen or Lester “individual follow-up questions” on this issue.

Ante, at 28.

Cite as: 588 U. S. ____ (2019) 13

THOMAS, J., dissenting

Next, the majority contends that white jurors Chesteen,

Lester, and Harold Waller, like Wright, “knew many

individuals involved in the case.” Ante, at 27. Yet the

majority concedes that Wright knew more individuals

than any of them. And the more relevant statistic from

the State’s perspective is how many defense witnesses a

juror knows, since that knowledge suggests a greater

connection to the defendant. By Flowers’ own count,

Wright knew substantially more defense witnesses than

the three white jurors. According to Flowers, Wright

knew 19 defense witnesses, while Chesteen knew 14 and

Lester and Waller knew around 6 each. See Brief for

Petitioner 49, n. 37; Brief for Appellant in No. 2010–DP–

01348–SCT (Miss.), p. 114.

Additional relevant differences existed between Wright

and the three white jurors. Wright had been sued by a

witness and member of the victim’s family, and worked at

the same store as the defendant’s father. Chesteen, on the

other hand, was friends with the same member of the

victim’s family and also knew another victim’s wife. App.

93–94, 46. The trial court found that Chesteen “had a

much closer relationship with members of the victim[s’]

families tha[n] she had with anyone in Flowers’ family.”

Id., at 278.

Likewise, Waller knew victim Carmen Rigby and her

husband; their children attended school with his daughter,

and “ ‘[t]hey were involved in school activities together.’ ”

Tr. 821, 1042. He served on the school board with Rigby.

Id., at 1043. And victim Bobo Stewart “ ‘went to school

with [Waller’s] daughter,’ ” and Waller knew his family.

App. 48, 53.

Similarly, Lester had been friends with Rigby’s husband

“ ‘for years,’ ” and he “ ‘knew her family.’ ” Tr. 822, 1045.

Lester’s wife taught Stewart first grade. App. 48; Tr.

1045. Lester was related by marriage to Bertha Tardy

and had known the Tardy family his entire life, growing

14 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

up with Bertha’s daughter. Id., at 787–788. His daughter

had just graduated with Bertha’s grandson, and they were

friends. Id., at 788, 1046. As Lester put it, “ ‘I have a lot

of connections to the [victims’] families.’ ” Id., at 788.

Given that these prospective jurors were favorable for

the State, it is hardly surprising that the State would not

affirmatively “us[e] individual questioning to ask th[e]se

potential white jurors whether they could remain impar-

tial despite their relationships” with victims’ families or

prosecution witnesses, ante, at 27–28, for to do so could

invite defense strikes. Revealingly, Flowers’ counsel had

exhaustively questioned these three white jurors—

treating them much differently than Wright. Flowers’

counsel asked Wright only a handful of questions, all of

which sought to confirm that she could judge impartially.

App. 90–91, 105–106. By contrast, Flowers’ counsel asked

Chesteen more than 30 questions, most of which sought to

cast doubt on Chesteen’s ability to remain impartial given

her relationships with the victims’ families. Id., at 93–95,

111–118. Flowers’ counsel asked Lester more than 60

questions and Waller about 15 questions along the same

lines. Tr. 1045–1047; App. 160–174; Tr. 1042–1044; App.

123–124. Flowers was so concerned about these white

jurors’ connections with the victims that he tried to strike

both Chesteen and Lester—but not Wright—for cause, and

when that failed, he exercised peremptory strikes on all

three white jurors. Tr. 1622, 1624, 1743–1744; App. 204,

208; see id., at 278.

In short, no reasonable litigant or trial court would

consider Wright “similarly situated,” ante, at 28, to these

three white jurors.

C

The majority next discovers “clue[s]” of racial discrimi-

nation in minor factual mistakes supposedly made by the

State during the Batson hearing. Ante, at 29–30. As an

Cite as: 588 U. S. ____ (2019) 15

THOMAS, J., dissenting

initial matter, Flowers forfeited this argument by failing

to present it to the trial court. Under Batson, the trial

court must decide whether, “in light of the parties’ submis-

sions,” “the defendant has shown purposeful discrimina-

tion.” Snyder v. Louisiana, 552 U. S. 472, 477 (2008)

(emphasis added; internal quotation marks omitted). The

Court has made clear that “a prosecutor simply has got to

state his reasons as best he can [at the Batson hearing]

and stand or fall on the plausibility of the reasons he

gives.” Miller-El v. Dretke, 545 U. S. 231, 252 (2005).

The same rule must apply to the defendant, the party

with the ultimate burden of proving purposeful discrimi-

nation. Johnson v. California, 545 U. S. 162, 170–171

(2005); Batson, 476 U. S., at 96–98. Thus, if the defendant

makes no argument on a particular point, the trial court’s

failure to consider that argument cannot be erroneous,

much less clearly so. See, e.g., Davis v. Baltimore Gas and

Elec. Co., 160 F. 3d 1023, 1027–1028 (CA4 1998); Wright v.

Harris County, 536 F. 3d 436, 438 (CA5 2008). Excusing

the defendant from making his arguments before the trial

court encourages defense counsel to remain silent, pre-

vents the State from responding, deprives the trial court of

relevant arguments, and denies reviewing courts a suffi-

cient record. See Snyder, supra, at 483; Garraway v.

Phillips, 591 F. 3d 72, 76–77 (CA2 2010).5

Even if Flowers had not forfeited his argument about

the State’s “mistakes,” it is devoid of merit. The Batson

hearing was conducted immediately after voir dire, before

a transcript was available. App. 214; id., at 225–226. In

——————

5 At a minimum, Mississippi has reasonably read Batson’s “ ‘prophy-

lactic framework,’ ” Johnson v. California, 545 U. S. 162, 174 (2005)

(THOMAS, J., dissenting), to mean that the party making a Batson claim

forfeits arguments not made to the trial court. See Pitchford v. State,

45 So. 3d 216, 227–228 (Miss. 2010); accord, Record 2965. Thus,

whether as a matter of Batson itself or the State’s implementation of

Batson, Flowers forfeited these arguments.

16 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

explaining their strikes, counsel relied on handwritten

notes taken during a fast-paced, multiday voir dire involv-

ing 156 potential jurors. Id., at 229, 258. Still, the major-

ity comes up with only a few mistakes, and they are either

imagined or utterly trivial. The majority claims that the

State incorrectly “asserted that Burnside”—one of the

struck black jurors—“had tried to cover up a Tardy Furni-

ture suit.” Ante, at 29. But the State’s assertion was at

least reasonable. When the State asked Burnside about

the lawsuit, she responded that “ ‘[i]t wasn’t a dispute’ ”

and “ ‘[w]e never had no misunderstanding about it.’ ”

App. 141–142. Quite reasonably, the State asked why the

matter ended up in court, and Burnside conceded that she

had to be sued, even as she insisted that there “ ‘was no

falling-out about it.’ ” Id., at 142. As previously explained,

a judgment and garnishment were issued against her.

The majority’s other supposed mistakes are inconse-

quential. First, the State confused which potential juror

worked with Flowers’ sister, and then corrected its mis-

take. See id., at 218–219, 234. Second, the State referred

to that juror, Tashia Cunningham, as “ ‘a close friend’ ” of

Flowers’ sister, whereas the testimony established only

that they worked together closely. Id., at 220. Flowers

agreed with the “ ‘friendship’ ” characterization during the

Batson hearing, id., at 221, and in any event, whether

Cunningham and Flowers’ sister were close co-workers or

close friends is irrelevant. Third, the State confused

struck juror Flancie Jones’ familial relationships with

Flowers, saying that Flowers’ sister was Jones’ niece,

when in fact Flowers’ sister was apparently married to

Jones’ nephew. Id., at 229, 231. But whatever the precise

relationship, even Flowers conceded that Jones had an

“ ‘in-law relationship to the entire [Flowers] family,’ ” so

the relevant point remained: Jones was related in multiple

ways to Flowers. Id., at 230–231; Tr. 967–968. It is hard

to imagine less significant “mistakes.”

Cite as: 588 U. S. ____ (2019) 17

THOMAS, J., dissenting

Tellingly, Flowers’ counsel, although aided by “ ‘many

interns,’ ” App. 214, made many more mistakes during this

process. E.g., id., at 204–205 (incorrectly identifying a

juror); id., at 207–208 (striking a juror and then immedi-

ately making an argument premised on not striking that

juror); id., at 210 (confusing jurors); id., at 211 (confusing

which family members were acquainted with a juror); id.,

at 212 (incorrectly stating that no general question was

asked of all jurors as to accounts or suits with the Tardys,

see id., at 70, 217); id., at 222–223 (confusing jurors); id.,

at 230 (“ ‘[M]aybe we didn’t get to this juror’ ”).6

In short, in the context of the trial below, a few trivial

errors on secondary or tertiary race-neutral reasons for

striking some jurors can hardly be counted as “telling”

evidence of race discrimination. Ante, at 30; see ibid.

(“[M]istaken explanations should not be confused with

racial discrimination”).

——————

6 These mistakes continued before this Court. Flowers asserts that in

his first four trials, the State “struck every black panelist that [it]

could,” Brief for Petitioner 23; that is false. See infra, at 30. Flowers

says that the State asked potential juror Robinson “a total of five

questions,” Brief for Petitioner 15, n. 14, but it actually asked 10. See

App. 82–83; Tr. 1147–1148. Flowers says that the State “did not

question [Robinson] on [his] relationship” with Flowers’ brother, Brief

for Petitioner 46, n. 35; it did. See App. 82–83. Flowers refers to

Bertha Tardy’s “son,” Brief for Petitioner 52, but Tardy’s only child was

a daughter. See Tr. 3268. Flowers says that “the Mississippi Supreme

Court found two clear Batson violations” in the third trial, Brief for

Petitioner 32; it did not. See infra, at 28–29. Flowers repeatedly refers

to “the decidedly false claim that Wright’s” and Burnside’s “wages had

been garnished,” Brief for Petitioner 56, 50, 18, 22, n. 24, 51; Tr. of Oral

Arg. 8, 11, 12, even though that claim is true. See supra, at 6–9.

Flowers said that Wright “still work[ed]” at Wal-Mart at the time of

jury selection, Tr. of Oral Arg. 16; she did not. Tr. 782. Flowers agreed

that in this trial, the State struck “every black juror that was available

on the panel” after “the first one,” Tr. of Oral Arg. 57–58; Reply Brief 1,

but it did not. See App. 241 (tendering a black juror as an alternate).

18 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

D

Turning to even less probative evidence, the majority

asserts that the State engaged in disparate—

“dramatically disparate,” the majority repeats, ante, at 2,

19, 23, 26, 31—questioning based on race. By the major-

ity’s count, “[t]he State asked the five black prospective

jurors who were struck a total of 145 questions” and “the

11 seated white jurors a total of 12 questions.” Ante, at

23. The majority’s statistical “evidence” is irrelevant and

misleading.

First, the majority finds that only one juror—Carolyn

Wright—was struck on the basis of race, but it neglects to

mention that the State asked her only five questions. See

App. 71–72, 104–105. Of course, the majority refuses to

identify the “certain level of disparity” that meets its

“dramatically disparate” standard, ante, at 26, but its

failure to recognize that the only juror supposedly discrim-

inated against was asked hardly any questions suggests

the majority is “slic[ing] and dic[ing]” statistics, ante, at

23. Asking other black jurors more questions would be an

odd way of “try[ing] to find some pretextual reason” to

strike Wright. Ante, at 25.

Second, both sides asked a similar number of questions

to the jurors they peremptorily struck. This is to be ex-

pected—a party will often ask more questions of jurors

whose answers raise potential problems. Among other

reasons, a party may wish to build a case for a cause

strike, and if a cause strike cannot be made, those jurors

are more likely to be peremptorily struck. Here, Flowers

asked the jurors he struck—all white, Tr. of Oral Arg.

57—an average of about 40 questions, and the State asked

the black jurors it struck an average of about 28 questions.

The number of questions asked by the State to these

jurors is not evidence of race discrimination.

Moreover, the majority forgets that correlation is not

causation. The majority appears to assume that the only

Cite as: 588 U. S. ____ (2019) 19

THOMAS, J., dissenting

relevant difference between the black jurors at issue and

seated white jurors is their race. But reality is not so

simple. Deciding whether a statistical disparity is caused

by a particular factor requires controlling for other poten-

tially relevant variables; otherwise, the difference could be

explained by other influences. See Fisher, Multiple Re-

gression in Legal Proceedings, 80 Colum. L. Rev. 702, 709

(1980); cf. Box v. Planned Parenthood of Indiana & Ken-

tucky, Inc., 587 U. S. ___, ___, n. 4 (2019) (THOMAS, J.,

concurring) (slip op., at 9, n. 4) (showing that bare statisti-

cal disparities can be used to support diametrically differ-

ent theories of causation). Yet the majority’s raw compar-

ison of questions does not control for any of the important

differences between struck and seated jurors. See supra,

at 11–14. This defective analysis does not even begin to

provide probative evidence of discrimination. See, e.g.,

People Who Care v. Rockford Bd. of Ed., School Dist. No.

205, 111 F. 3d 528, 537–538 (CA7 1997) (Posner, C. J.)

(“[A] statistical study that fails to correct for salient ex-

planatory variables, or even to make the most elementary

comparisons, has no value as causal explanation”). In-

deed, it is difficult to conceive of a statistical study that

could possibly control for all of the relevant variables in

this context, including tone of voice, facial expressions,

and other relevant information.

Most fundamentally, the majority’s statistics are di-

vorced from the realities of this case. Winona is a very

small town, and “ ‘this was the biggest crime that had ever

occurred’ ” there. Tr. 1870. As one juror explained,

“ ‘[e]verybody in Winona has probably’ ” heard about the

case. Id., at 1180; accord, id., at 1183 (Flowers’ counsel

stating the same). One potential juror knew almost every-

one “ ‘involved in it’ ” between her job as a teacher and

attendance at church. App. 81–82. Tardy Furniture

“‘basically did business with the whole Winona community.’”

Tr. 2667.

20 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Moreover, Flowers’ family was “ ‘very, very prominent’ ”

in Winona’s black community. Id., at 1750. As the trial

court explained,

“ ‘Flowers has a number of brothers and sisters. His

parents are well-known. [His father] is apparently

one of the most well-thought of people in this commu-

nity. You have had countless numbers of African-

American individuals that have come in and said they

could not sit in judgment because of their knowledge

of Mr. Flowers, and they could not be fair and impar-

tial.’ ” App. 197; see id., at 199–200; Tr. 1750.

Flowers’ counsel stated that when Flowers’ father “ ‘was

working as a greeter at Wal-Mart,’ ” there was “ ‘probably

not a person in Winona who wouldn’t have said, “Mr.

Archie’s my friend.” ’ ” App. 221. According to the trial

court, “the overwhelming majority” of potential black

jurors “stated that they could not sit in judgment of him

because of kinships, friendships, and family ties.” Id.,

at 256.

To obtain a sufficient jury pool, the trial court had to

call 600 potential jurors. Id., at 258. In such a small

county, that meant a man, his wife, his mother, and his

father were all called for jury duty in this case. See Tr.

939–941. According to Flowers,

“seventy-five percent of the total qualified venire, sixty-

three percent of the venire members actually ten-

dered for acceptance or rejection as jurors, and forty

percent of the persons empanelled as jurors or alter-

nates (six of 15) were personally acquainted with ei-

ther the defendant or one or more of the decedents

or their families and/or had actual opinions as to guilt

or innocence formed prior [to] the trial.” Brief for

Appellant 130.

Before peremptory strikes even started, the venire had

Cite as: 588 U. S. ____ (2019) 21

THOMAS, J., dissenting

gone from 42% to 28% black. App. 194–195. As the trial

court explained, “ ‘nothing the State has done has caused

this statistical abnormality.’ ” Id., at 198. Instead, any

“ ‘statistical abnormality’ ” “ ‘is strictly because of the prom-

inence of [Flowers’] family.’ ” Id., at 200. Flowers’ counsel

admitted that she was not “ ‘surprise[d]’ ” by the reduction

given the circumstances and the experiences in the previ-

ous trials. Id., at 199.7

The state courts appropriately viewed the parties’ ques-

tioning in light of these circumstances. The Mississippi

Supreme Court, for example, found that the State “asked

more questions” of the “jurors who knew more about the

case, who had personal relationships with Flowers’s family

members, who said they could not be impartial, or who

said they could not impose the death penalty,” and that

“[t]hose issues are appropriate for followup questions.”

240 So. 3d, at 1125. The court also found that “[t]he

State’s assertion that elaboration and followup questions

were needed with more of the African-American jurors is

supported by the record.” Ibid. The majority wonders

why “the State spent far more time questioning the black

prospective jurors” and concludes that “[n]o one can

know.” Ante, at 23, 25. But even Flowers admits that

“more African-American jurors knew the parties, most of

the [State’s] follow-up questions pertained to relevant

matters, [and] more questions were asked of jurors who

had personal relationships about the case, or qualms

——————

7 One trial had to be moved to a new venue because “during voir dire

it became apparent that a fair and impartial jury could not be impan-

eled.” Flowers v. State, 842 So. 2d 531, 535 (Miss. 2003). At another

trial, one of two black jurors seated was “excused after he informed the

judge that he could not be a fair and impartial juror.” Flowers v. State,

947 So. 2d 910, 916 (Miss. 2007). And at the next trial, one of the

alternate jurors, who was black, was convicted of perjury after it came

to light that she had lied during voir dire about not knowing Flowers

and had visited him in jail. Flowers v. State, 240 So. 3d 1082, 1137

(Miss. 2017).

22 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

about the death penalty.” Pet. for Cert. 23 (emphasis

deleted).

The majority ignores Flowers’ concession, but the ques-

tions asked by the State bear it out. The State’s questions

also refute the majority’s suggestion that the State did not

“not as[k] white prospective jurors th[e] same questions.”

Ante, at 25. The State asked all potential jurors whether

Tardy Furniture sued them, and only Wright and Burn-

side answered in the affirmative. See App. 70–71, 99–100,

217–218. Two of five questions to Wright and around

eight questions to Burnside followed up on this lawsuit.

Id., at 70–72, 141–143. All potential jurors were asked

whether they knew Flowers’ father, and no white jurors

had worked with him at Wal-Mart. Id., at 61, 218. Two of

Wright’s remaining three questions followed up on this

relationship. Id., at 104–105. The State asked all poten-

tial jurors whether anyone lived in the areas around Flow-

ers’ house, and no white jurors answered in the affirma-

tive. Id., at 75–81. Seven questions to Copper—another

black prospective juror—and three to Burnside followed

up on this geographic proximity. Id., at 75–77, 79–80.

Copper’s remaining questions were mostly about her

working with Flowers’ father and sister and her statement

that she would lean in Flowers’ favor. Id., at 77–78, 189–

190. Burnside’s remaining questions were mostly about

Flowers’ visits to her house and her statement that she

could not judge others. Id., at 80–81, 143–144. The State

asked all potential jurors whether anyone was related to

Flowers’ family, and only Jones, a black prospective juror,

answered affirmatively, leading to about 18 follow-up

questions. Id., at 72–75, 86–88, 179–180. Jones’ remain-

ing questions were mostly about her being late to court

and her untruthful answer regarding the death penalty on

the jury questionnaire. Id., at 75, 180–182. Finally, nearly

all of Cunningham’s questions were about her work with

Flowers’ sister. Id., at 83–85, 130–133. Any reasonable

Cite as: 588 U. S. ____ (2019) 23

THOMAS, J., dissenting

prosecutor would have followed up on these issues, and

the majority does not cite even a single question that it

thinks suggests racial discrimination.

The majority’s comparison of the State’s questions to

Copper with its questions to several white jurors is base-

less. As an initial matter, Flowers forfeited this argument

by not making it at the trial court. See supra, at 14–15;

App. 235–238. And as the Court has previously explained,

“a retrospective comparison of jurors based on a cold ap-

pellate record may be very misleading when alleged simi-

larities were not raised at trial” because “an exploration of

the alleged similarities at the time of trial might have

shown that the jurors in question were not really compa-

rable.” Snyder, 552 U. S., at 483.

Even if Flowers had not forfeited this argument, it is

meritless. As previously discussed, Copper worked with

two of Flowers’ family members and testified that she

could “ ‘lean toward’ ” Flowers and would not decide the

case “ ‘with an open mind.’ ” App. 190; see id., at 78.

These answers justified heavier questioning than was

needed for Chesteen, the white bank teller who occasionally

served Flowers’ family members. Moreover, the State did

ask Chesteen and Lester, a white juror who also worked at

the bank, “follow-up questions about [their] relationships

with Flowers’ family.” Ante, at 24; see App. 83, 86.8 I

have already addressed Lester and Waller, another white

juror who had connections to the victims, and why the

State did not need to ask them more questions. See supra,

at 11–14. The majority also references Larry Blaylock and

Marcus Fielder, two other white prospective jurors who

“had relationships with defense witnesses.” Ante, at 24.

——————

8 The majority seems to draw a distinction between individual ques-

tions asked during group voir dire and individual questions asked

during individual voir dire. Ante, at 23–24. I cannot imagine why this

distinction would matter here. The majority does not explain its

reasoning, and its statistics treat these questions the same.

24 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

As for Blaylock, the majority makes no attempt to say

what those “relationships” were, presumably because the

only relationship discussed at the Batson hearing was

Blaylock’s 30-year friendship with the prosecutor’s primary

investigator—whom the defense planned to call as a hos-

tile witness. App. 215; Tr. 1041–1042. The investigator

was also his uncle by marriage, id., at 1078, and the de-

fense asked Blaylock some 46 questions. Id., at 1041–

1042, 1078, 1182–1187. Likewise, Fielder’s only relation-

ship discussed at the Batson hearing was his work for a

prosecution witness who had investigated the murders.

See App. 215. The defense felt it necessary to ask Fielder

about 30 follow-up questions. Tr. 1255–1260. In short,

despite the majority’s focus on Copper, ante, at 24, no one

could (or did) compare the State’s need to question her

with its need to question these jurors.

Next, the majority complains that the State had a wit-

ness testify that Cunningham worked closely with Flow-

ers’ sister. According to the majority, “[t]he State appar-

ently did not conduct similar investigations of white

prospective jurors.” Ibid. Putting aside that the majority

offers no record support for this claim, the majority does

not tell us what investigation was performed, much less

which white jurors could or should have been similarly

investigated. As far as the record reveals, the State made

one call to Cunningham’s employer on the morning of the

hearing to ask a single question: Where did Cunningham

work in relation to Flowers’ sister? App. 149, 154. I see

no reason to assume that the State failed to conduct any

other single-phone-call “investigations” in this high-profile

trial. Nor am I aware of white jurors who worked in any

proximity to Flowers’ family members. If the majority is

going to infer racial bias from the State’s attempt to pre-

sent the truth in court—particularly in a case where juror

perjury had been a problem, see supra, at 21, n. 7—it

ought to provide a sound basis for its criticism.

Cite as: 588 U. S. ____ (2019) 25

THOMAS, J., dissenting

Finally, to support its view that “[t]he difference in the

State’s approaches to black and white prospective jurors

was stark,” the majority asserts that “[w]hite prospective

jurors who admitted that they or a relative had been

convicted of a crime were accepted without apparent

further inquiry by the State.” Ante, at 25. The majority

again cites nothing to support this assertion, and the

record does not support it. Three of the struck black ju-

rors had relatives with a criminal conviction. See Tr. 883

(Burnside); id., at 885 (Copper); 2d Supp. Record 255b

(Cunningham). The State asked no questions to either

Copper or Cunningham on this point, and it asked three

questions to Burnside about her son’s robbery conviction

and. See App. 144–145. The State treated white jurors

similarly. For example, the State asked three questions to

Suzanne Winstead about a nephew’s drug charges, Tr.

1190–1191; four questions to Sandra Hamilton about

crimes of her first cousins, id., at 977; and two questions to

Larry Blaylock about a cousin who committed murder, id.,

at 978–979.9

Because any “disparate questioning or investigation of

black and white prospective jurors” here “reflect[s] ordi-

nary race-neutral considerations,” ante, at 26, this factor

provides no evidence of racial discrimination in jury selec-

tion below.

E

If this case required us to decide whether the state

courts were correct that no Batson violation occurred here,

I would find the case easy enough. As I have demonstrated,

——————

9 The majority ominously warns that, through questioning, prosecu-

tors “can try to find some pretextual reason . . . to justify what is in

reality a racially motivated strike” and that “[p]rosecutors can decline

to seek what they do not want to find about white prospective jurors.”

Ante, at 25. I would not so blithely impute single-minded racism to

others. Doing so cheapens actual cases of discrimination.

26 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

the evidence overwhelmingly supports the conclusion that

the State did not engage in purposeful race discrimination.

Any competent prosecutor would have struck the jurors

struck below. Indeed, some of the jurors’ conflicts might

even have justified for-cause strikes. But this case is

easier yet. The question before us is not whether we

“ ‘would have decided the case differently,’ ” Easley v.

Cromartie, 532 U. S. 234, 242 (2001), but instead whether

the state courts were clearly wrong. And the answer to

that question is obviously no.

The Court has said many times before that “[t]he trial

court has a pivotal role in evaluating Batson claims.”

Snyder, 552 U. S., at 477. The ultimate question in Bat-

son cases—whether the prosecutor engaged in purposeful

discrimination—“involves an evaluation of the prosecutor’s

credibility,” and “ ‘the best evidence [of discriminatory

intent] often will be the demeanor of the attorney who

exercises the challenge.’ ” Ibid. The question also turns on

“a juror’s demeanor,” “making the trial court’s firsthand

observations of even greater importance.” Ibid. “[O]nly

the trial judge can be aware of the variations in demeanor

and tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.” Anderson v.

Bessemer City, 470 U. S. 564, 575 (1985).

Because the trial court is best situated to resolve the

sensitive questions at issue in a Batson challenge, “a trial

court’s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous.” Snyder, supra, at

477; see Foster, 578 U. S., at ___ (slip op., at 10). Our

review is particularly deferential where, as here, “an

intermediate court reviews, and affirms, a trial court’s

factual findings.” Easley, supra, at 242.

Under this clear-error standard of review, “[w]here

there are two permissible views of the evidence, the fact-

finder’s choice between them cannot be clearly erroneous.”

Anderson, supra, at 574; see also Cooper v. Harris, 581

Cite as: 588 U. S. ____ (2019) 27

THOMAS, J., dissenting

U. S. ___, ___ (2017) (slip op., at 4). The notion that it is

“impermissible” to adopt the view of the evidence that I

have outlined above is incredible. Besides being supported

by carefully reasoned opinions from both the trial court

and the Mississippi Supreme Court—opinions that, unlike

the majority’s, consider all relevant facts and circum-

stances—that view is at a minimum consistent with the

factual record. At the Batson hearing, the State offered “a

coherent and facially plausible story that is not contra-

dicted” by the record, and the trial court’s “decision to

credit” such a story “can virtually never be clear error.”

Anderson, supra, at 575. The trial court reasonably un-

derstood the supposedly “dramatically disparate” ques-

tioning to be explained by the circumstances of this case—

circumstances that the majority does not dispute. Like-

wise, the trial court reasonably did not view any picayune

mistakes by the State to be compelling evidence of racial

discrimination. (Of course, neither did the defense, which

is presumably why it did not make that argument. But

the clear-error and forfeiture doctrines are speed bumps

en route to the Court’s desired destination.) Yet the Court

discovers “clear error” based on its own review of a near-

decade-old record. The majority apparently thinks that it

is in a better position than the trial court to judge the tone

of the questions and answers, the demeanor of the attor-

neys and jurors, the courtroom dynamic, and the culture of

Winona, Mississippi.

III

Given that there was no evidence of race discrimination

in the trial here, the majority’s remaining explanation for

its decision is conduct that took place before this trial. The

majority builds its decision around the narrative that this

case has a long history of race discrimination. This narra-

tive might make for an entertaining melodrama, but it has

no basis in the record. The history, such as it is, does not

28 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

come close to carrying Flowers’ burden of showing that the

state courts clearly erred.

A

The State exercised 50 peremptory strikes in Flowers’

previous trials. As the case comes to us, 49 of those

strikes were race neutral. If this history teaches us any-

thing, it is that we should not assume the State strikes

jurors based on their race.

Flowers’ first trial was for the murder of Bertha Tardy

only. In that trial, the State exercised peremptory strikes

on five black jurors and seven white jurors. App. 35. The

trial court found that Flowers had not made out even a

prima facie Batson case, id., at 12, n. 3, much less showed

purposeful race discrimination in any of the State’s

strikes. Thus, as this case comes to us, all of the State’s

strikes in this trial were race neutral.

What the majority calls the second trial is actually

Flowers’ first trial for another murder—that of Bobo

Stewart. During jury selection, the State exercised per-

emptory strikes on five black jurors and two white jurors;

the trial court disallowed one of the State’s strikes under

Batson. App. 35; id., at 17–19. Flowers was convicted and

apparently did not appeal on Batson grounds. Eventually,

the Mississippi Supreme Court reversed Flowers’ convic-

tions from the first two trials for reasons unrelated to jury

selection. The court held that certain evidence relevant to

all four murders was improperly admitted. Flowers v.

State, 773 So. 2d 309, 317, 319–324 (Miss. 2000); Flowers

v. State, 842 So. 2d 531, 538, 539–550 (Miss. 2003).

The State next tried Flowers for all four murders to-

gether. In this “third” trial—actually the first trial for the

murders of Robert Golden and Carmen Rigby—the State

struck 15 black jurors. App. 35. The trial court found no

Batson violations. Flowers v. State, 947 So. 2d 910, 916

(Miss. 2007) (plurality opinion). On appeal, Flowers did

Cite as: 588 U. S. ____ (2019) 29

THOMAS, J., dissenting

not challenge four of the strikes, id., at 918, and the Mis-

sissippi Supreme Court unanimously upheld the trial

court’s ruling as to nine of the other strikes, see id., at

918–935. Four justices, constituting a plurality of the

court, would have held that two strikes violated Batson,

947 So. 2d, at 926, 928; one justice concurred only in the

judgment because she “d[id] not agree” with the “plurality”

“that this case is reversible on the Batson issue alone,” id.,

at 939 (Cobb, P. J., concurring in result); and four justices

would have held that no strikes violated Batson, 947

So. 2d, at 942–943 (Smith, C. J., dissenting). If the con-

curring justice thought any strikes were impermissible,

Batson would have required her to reverse on that basis.

Thus, the Court is wrong multiple times over to say that

the Mississippi Supreme Court “conclud[ed] that the State

had again violated Batson by discriminating on the basis

of race in exercising all 15 of its peremptory strikes

against 15 black prospective jurors.” Ante, at 5. That

court unanimously concluded that 13 strikes were race

neutral, and a majority concluded that the remaining two

strikes did not violate Batson. Therefore, neither the trial

court nor the Mississippi Supreme Court found any Batson

violation in this third trial—all 15 strikes were race

neutral.10

——————

10 The Court repeatedly and inaccurately attributes statements by the

plurality to the Mississippi Supreme Court—or deems those statements

part of a “lead opinion,” ante, at 5, 20, even though a majority of that

court disagreed in relevant part. The Court also takes the plurality’s

statements out of context. For instance, three times the Court quotes

the plurality’s statement that “ ‘[t]he instant case presents us with as

strong a prima facie case of racial discrimination as we have ever seen

in the context of a Batson challenge.’ ” Ante, at 2, 5, 20. But that

statement was focused solely on the fact that “[t]he prosecutor exer-

cised all fifteen of his peremptory strikes on African-Americans.”

Flowers, 947 So. 2d, at 935. One could just as easily say that Flowers’

own strikes here—11 whites, zero blacks—present an overwhelming

prima facie case of racial discrimination. Tr. of Oral Arg. 57 (admitting

30 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

In the next two trials, Flowers apparently did not even

allege a Batson violation. In the “fourth” trial, the State

struck 11 black jurors but did not exercise its three re-

maining strikes; five black jurors were seated. App. 28–

29, 35. In the “fifth” trial, the State struck five jurors, but

Flowers is unable to identify the race of these jurors, and

three black jurors were seated. Brief for Petitioner 13.

Thus, up to the present trial, the State had sought to

exercise 50 peremptory strikes, 36 on potential black

jurors. Finally, in this trial, the State struck five black

jurors and one white juror; one black juror sat on the jury,

and one black juror was an alternate.

According to the majority, “the State’s use of peremptory

strikes in Flowers’ first four trials reveal[s] a blatant

pattern of striking black prospective jurors.” Ante, at 20.

The majority claims that “[o]ver the course of the first four

trials, there were 36 black prospective jurors against

whom the State could have exercised a peremptory strike,”

and “[t]he State tried to strike all 36.” Ibid. The major-

ity’s argument is wrong on several levels.

First, the majority is wrong on the numbers. The major-

ity repeatedly says that over “the six trials combined,” “the

State struck 41 of the 42 black prospective jurors it could

have struck.” Ante, at 31; see ante, at 2. Yet in the fourth

trial, according to Flowers himself, the State did not exer-

cise available peremptory strikes on at least three black

jurors. See App. 28–29. Moreover, the majority does not

know the races of the struck jurors in the fifth trial. Given

that at least three black jurors were seated and that the

State exercised only five strikes, it would appear that the

State did not exercise available strikes against at least

——————

that Flowers’ trial counsel “only exercised peremptories against white

jurors”). As the Court understands, a prima facie case is only the first

step of Batson, ante, at 12–13, and a majority of the Mississippi Su-

preme Court in the third trial found that Flowers failed to carry his

burden of proving purposeful racial discrimination as to any strike.

Cite as: 588 U. S. ____ (2019) 31

THOMAS, J., dissenting

three black jurors. Finally, in the most recent trial, the

State tendered two black jurors for service on the jury, one

of whom served as an alternate. (The majority’s strike

numbers include strikes of alternates, so its juror numbers

should too.) However the majority arrived at its numbers,

the record tells a different story.11

Second, the Court says that “[t]he State’s actions in the

first four trials necessarily inform our assessment of the

State’s intent,” for “[w]e cannot ignore that history.” Ante,

at 22. Putting aside that no court below ignored the history,

the majority completely ignores Flowers’ failure to chal-

lenge the State’s actions in the fifth trial—the one that

immediately preceded this one. Flowers bears the burden

of proving racial discrimination, and the reason infor-

mation about the fifth trial is not “available,” ante, at 21,

is that Flowers failed to present it. Perhaps he did not

want to present it because the State struck only white

jurors—who knows? Regardless, this failure must count

against Flowers’ claim. Surely a party making a Batson

claim cannot gather data from select trials and present

only favorable snippets.

Third, and most importantly, that the State previously

sought to exercise 36 strikes against black jurors does not

“speak loudly” in favor of discrimination here, ante, at 20,

because 35 of those 36 strikes were race neutral. By the

majority’s own telling, the trial court may “consider histor-

ical evidence of the State’s discriminatory peremptory

——————

11 Rather than explain its numbers, the Court points out that when

pressed at oral argument, the State agreed that 41 of 42 potential black

jurors had been stricken. Ante, at 2, 20. No one else—not even Flow-

ers—has agreed with that statistic. See Brief for Petitioner 32; App.

35. Flowers certainly did not present it to the state courts. The ques-

tion before us is whether those courts clearly erred, and in reviewing

their decisions, we must affirm “ ‘if the result is correct’ ” based on the

actual record. NLRB v. Kentucky River Community Care, Inc., 532

U. S. 706, 722, n. 3 (2001).

32 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

strikes from past trials.” Ante, at 19 (emphasis added).

As I have shown, 35 of 36 strikes were not “discriminatory

peremptory strikes.” The bare number of black-juror

strikes is relevant only if one eliminates other explana-

tions for the strikes, cf. supra, at 18–19, but prior adjudi-

cations (and Flowers’ failure to even object to some

strikes) establish that legitimate reasons explained all but

one of them. Is the majority today holding that the prior

courts all committed clear error too? And what about the

strikes that even Flowers did not object to—is the majority

sua sponte holding that the State was engaged in purpose-

ful racial discrimination as to those strikes? The major-

ity’s reliance on race-neutral strikes to show discrimination

is judicial alchemy.

B

The only incident in the history of this case even hinting

at discrimination was that a trial judge 20 years ago

prevented the State from striking one black juror in a case

involving only one of Flowers’ crimes. If this single im-

permissible strike could provide evidence of purposeful

race discrimination in a different trial 11 years later

involving different murders (and victims of different races),

it is surely the weakest of evidence. Even Flowers con-

cedes that a single “Batson violation 20 years ago” would

be only “weakly probative.” Tr. of Oral Arg. 19–20. That

is the precise situation here. And this “weakly probative”

single strike certainly does not overcome the complete

absence of evidence of purposeful race discrimination in

this trial. We know next to nothing about this strike, for

Flowers has not even provided us with a transcript of the

jury selection from that trial. And the trial court’s ruling

on the strike was never reviewed on appeal.

Pretending for a moment that the concurring justice in

the third trial had voted differently than she did, the

history still could not overcome the absence of evidence of

Cite as: 588 U. S. ____ (2019) 33

THOMAS, J., dissenting

purposeful race discrimination in this trial. Flowers forth-

rightly acknowledged that he needed to show “discrimina-

tion in this trial in order to have a Batson violation.” Id.,

at 23 (emphasis added). At a minimum, the state courts’

finding—that the history does not carry Flowers’ burden of

proving purposeful race discrimination here—is not clearly

erroneous. The courts below were presented with Flowers’

view of the history, and even accepting that view and

“[t]aking into account the ‘historical evidence’ of past

discrimination,” the Mississippi Supreme Court held that

the trial court did not err “in finding that the State did not

violate Batson.” 240 So. 2d, at 1135; see id., at 1122–1124.

The majority simply disregards this assessment by the

state courts.

IV

Much of the Court’s opinion is a paean to Batson v.

Kentucky, which requires that a duly convicted criminal go

free because a juror was arguably deprived of his right to

serve on the jury. That rule was suspect when it was

announced, and I am even less confident of it today. Bat-

son has led the Court to disregard Article III’s limitations

on standing by giving a windfall to a convicted criminal

who, even under Batson’s logic, suffered no injury. It has

forced equal protection principles onto a procedure de-

signed to give parties absolute discretion in making indi-

vidual strikes. And it has blinded the Court to the reality

that racial prejudice exists and can affect the fairness of

trials.

A

In Batson, this Court held that the Equal Protection

Clause prohibits the State from “challeng[ing] potential

jurors solely on account of their race or on the assumption

that black jurors as a group will be unable impartially to

consider the State’s case.” 476 U. S., at 89. “[I]ndividual

34 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

jurors subjected to racial exclusion have the legal right to

bring suit on their own behalf.” Powers v. Ohio, 499 U. S.

400, 414 (1991). To establish standing to assert this equal

protection claim in a separate lawsuit, the juror would

need to show that the State’s action caused him to suffer

an injury in fact, and a likelihood that a favorable decision

will redress the injury. Lujan v. Defenders of Wildlife, 504

U. S. 555, 560–561 (1992). Flowers, however, was not the

excluded juror. And although he is a party to an ongoing

proceeding, “ ‘ “standing is not dispensed in gross” ’ ”; to the

contrary, “ ‘a plaintiff must demonstrate standing for each

claim he seeks to press and for each form of relief that is

sought.’ ” Town of Chester v. Laroe Estates, Inc., 581 U. S.

___, ___ (2017) (slip op., at 5).

Flowers should not have standing to assert the excluded

juror’s claim. He does not dispute that the jury that con-

victed him was impartial, see U. S. Const., Amdt. VI, and

as the Court has said many times, “ ‘[d]efendants are not

entitled to a jury of any particular composition.’ ” Holland

v. Illinois, 493 U. S. 474, 483 (1990). He therefore suffered

no legally cognizable injury. The only other plausible

reason a defendant could suffer an injury from a Batson

violation is if the Court thinks that he has a better chance

of winning if more members of his race are on the jury.

But that thinking relies on the very assumption that

Batson rejects: that jurors might “ ‘be partial to the de-

fendant because of their shared race.’ ” Ante, at 14 (quot-

ing Batson, supra, at 97). Moreover, it cannot be squared

with the Court’s later decisions, which hold that “race is

irrelevant to a defendant’s standing to object to the dis-

criminatory use of peremptory challenges.” Powers, 499

U. S., at 416 (holding that a white defendant has standing

to challenge strikes of black jurors).

Today, the Court holds that Carolyn Wright was denied

equal protection by being excluded from jury service. But

she is not the person challenging Flowers’ convictions (she

Cite as: 588 U. S. ____ (2019) 35

THOMAS, J., dissenting

would lack standing to do so), and I do not understand

how Flowers can have standing to assert her claim. Why

should a “denial of equal protection to other people” that

does “not affect the fairness of that trial” mean that

“the defendant must go free”? Id., at 431 (Scalia, J.,

dissenting).

In Powers, the Court relied on the doctrine of third-

party standing. As an initial matter, I doubt “whether a

party who has no personal constitutional right at stake in

a case should ever be allowed to litigate the constitutional

rights of others.” Kowalski v. Tesmer, 543 U. S. 125, 135

(2004) (THOMAS, J., concurring); see also Whole Woman’s

Health v. Hellerstedt, 579 U. S. ___, ___–___ (2016)

(THOMAS, J., dissenting) (slip op., at 2–5).

Even accepting the notion of third-party standing, it is

hard to see how it could be satisfied in Batson cases. The

Court’s precedents require that a litigant asserting anoth-

er’s rights have suffered an “ ‘injury in fact’ ” and have “a

close relation” to the third party. Powers, supra, at 411.

As shown, Flowers suffered no injury in fact under the

Court’s precedents. Moreover, in the ordinary case, the

defendant has no relation whatsoever to the struck jurors.

(Here, as it happens, all the struck jurors knew Flowers or

his family, but that hardly helps his Batson claim.)

In Powers, the Court concluded that defendants and

struck jurors share a “common interest.” 499 U. S., at 413.

But like most defendants, Flowers’ interest is in avoiding

prison (or execution). A struck juror, by contrast, is un-

likely to feel better about being excluded from jury service

simply because a convicted criminal may go free. And

some potential jurors, like Flancie Jones here, “ ‘really and

truly . . . don’t want to’ ” serve on a jury in the first place.

App. 181 (emphasis added); see also Hayes v. Missouri,

120 U. S. 68, 71 (1887) (referring to “an unfortunate dispo-

sition on the part of business men to escape from jury

duty”). If Flowers had succeeded on his Batson claim at

36 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

trial and forced Jones onto the jury, it seems that he—her

supposed third-party representative with a “common

interest”—would have inflicted an injury on her.

Our remedy for Batson violations proves the point. The

convicted criminal, who suffered no injury, gets his convic-

tion vacated.12 And even if the struck juror suffered a

cognizable injury, but see Powers, supra, at 423–426 (Scalia,

J., dissenting), that injury certainly is not redressed by

undoing the valid conviction of another. Under Article III,

Flowers should not have standing.

B

The more fundamental problem is Batson itself. The

“entire line of cases following Batson” is “a misguided

effort to remedy a general societal wrong by using the

Constitution to regulate the traditionally discretionary

exercise of peremptory challenges.” Campbell v. Louisi-

ana, 523 U. S. 392, 404, n. 1 (1998) (THOMAS, J., concur-

ring in part and dissenting in part). “[R]ather than help-

ing to ensure the fairness of criminal trials,” Batson

“serves only to undercut that fairness by emphasizing the

rights of excluded jurors at the expense of the traditional

protections accorded criminal defendants of all races.”

Campbell, supra, at 404, n. 1. I would return to our pre-

Batson understanding—that race matters in the court-

room—and thereby return to litigants one of the most

important tools to combat prejudice in their cases.

1

In Strauder v. West Virginia, 100 U. S. 303 (1880), the

——————

12 The Court has never explained “why a violation of a third party’s

right to serve on a jury should be grounds for reversal when other

violations of third-party rights, such as obtaining evidence against the

defendant in violation of another person’s Fourth or Fifth Amendment

rights, are not.” Campbell v. Louisiana, 523 U. S. 392, 405 (1998)

(THOMAS, J., concurring in part and dissenting in part).

Cite as: 588 U. S. ____ (2019) 37

THOMAS, J., dissenting

Court invalidated a state law that prohibited blacks from

serving on juries. In doing so, we recognized that the

racial composition of a jury could affect the outcome of a

criminal case. See id., at 308–309. The Court explained

that “[i]t is well known that prejudices often exist against

particular classes in the community, which sway the

judgment of jurors, and which, therefore, operate in some

cases to deny to persons of those classes the full enjoyment

of that protection which others enjoy.” Id., at 309. Thus,

we understood that allowing the defendant an opportunity

to “secur[e] representation of the defendant’s race on the

jury may help to overcome racial bias and provide the

defendant with a better chance of having a fair trial.”

Georgia v. McCollum, 505 U. S. 42, 61 (1992) (THOMAS, J.,

concurring in judgment).

In Swain v. Alabama, 380 U. S. 202 (1965), the Court

held that individual peremptory strikes could not give rise

to an equal protection challenge. Swain followed Strauder

in assuming that race—like other factors that are generally

unsuitable for the government to use in making classifica-

tions—can be considered in peremptory strikes: “In the

quest for an impartial and qualified jury, Negro and white,

Protestant and Catholic, are alike subject to being chal-

lenged without cause.” Swain, 380 U. S., at 221. That is

because the peremptory “challenge is ‘one of the most

important of the rights secured to the accused.’ ” Id., at

219. Based on its long history, the peremptory system

“affords a suitable and necessary method of securing juries

which in fact and in the opinion of the parties are fair and

impartial.” Id., at 212; see id., at 212–219. The strike

both “eliminate[s] extremes of partiality on both sides”

and “assure[s] the parties that the jurors before whom

they try the case will decide on the basis of the evidence

placed before them, and not otherwise.” Id., at 219. Be-

cause this system, “in and of itself, provides justification

for striking any group of otherwise qualified jurors in any

38 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

given case, whether they be Negroes, Catholics, account-

ants or those with blue eyes,” id., at 212, we concluded

that an equal protection challenge was unavailable

against individual peremptory strikes.

Then, in a departure from the previous century of juris-

prudence, the Court moved its focus from the protections

accorded the defendant to the perceptions of a hypothetical

struck juror. In Batson, the Court concluded that the

government could not exercise individual strikes based

solely on “the assumption—or [the] intuitive judgment—

that [jurors] would be partial to the defendant because of

their shared race.” 476 U. S., at 97. The Court’s opinion

in Batson equated a law categorically excluding a class of

people from jury service with the use of discretionary

peremptory strikes to remove members of that class: “Just

as the Equal Protection Clause forbids the States to ex-

clude black persons from the venire on the assumption

that blacks as a group are unqualified to serve as jurors,

so it forbids the States to strike black veniremen on the

assumption that they will be biased in a particular case

simply because the defendant is black.” Ibid. (citation

omitted). Batson repeatedly relies on this analogy. See

id., at 86, 89; id., at 87 (“A person’s race simply is unrelated

to his fitness as a juror” (internal quotation marks omit-

ted)); see also ante, at 14 (quoting Batson, supra, at 104–

105 (Marshall, J., concurring)); Powers, 499 U. S., at 410

(“Race cannot be a proxy for determining juror bias or

competence”).

But this framing of the issue ignores the nature and

basis of the peremptory strike and the realities of racial

prejudice. A peremptory strike reflects no judgment on a

juror’s competence, ability, or fitness. Instead, the strike

is exercised based on intuitions that a potential juror may

be less sympathetic to a party’s case. As Chief Justice

Burger emphasized, “venire-pool exclusion bespeaks a

priori across-the-board total unfitness, while peremptory-

Cite as: 588 U. S. ____ (2019) 39

THOMAS, J., dissenting

strike exclusion merely suggests potential partiality in a

particular isolated case. ” Batson, supra, at 122–123 (dis-

senting opinion) (internal quotation marks omitted); ac-

cord, Powers, supra, at 424 (Scalia, J., dissenting). “[T]he

question a prosecutor or defense counsel must decide is

not whether a juror of a particular race or nationality is in

fact partial, but whether one from a different group is less

likely to be.” Swain, 380 U. S., at 220–221 (emphasis

added). Therefore, “veniremen are not always judged

solely as individuals for the purpose of exercising peremp-

tory challenges”; instead, “they are challenged in light of

the limited knowledge counsel has of them, which may

include their group affiliations, in the context of the case

to be tried.” Id., at 221.

Batson rejects the premise that peremptory strikes can

be exercised on the basis of generalizations and demands

instead “an assessment of individual qualifications.” 476

U. S., at 87. The Court’s Batson jurisprudence seems to

conceive of jury selection more as a project for affirming

“the dignity of persons” than as a process for providing a

jury that is, including in the parties’ view, fairer. Powers,

supra, at 402; see Edmonson v. Leesville Concrete Co., 500

U. S. 614, 631 (1991); see also J. E. B. v. Alabama ex rel.

T. B., 511 U. S. 127, 140–142 (1994).

2

Batson’s focus on individual jurors’ rights is wholly

contrary to the rationale underlying peremptory challenges.

And the application of equal protection analysis to indi-

vidual strikes has produced distortions in our jurispru-

dence that are symptomatic of its poor fit, both as a matter

of common sense and the protections traditionally accorded

litigants.

The Court did not apply equal protection principles to

individual peremptory strikes until more than 100 years

after the Fourteenth Amendment was ratified. Once it

40 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

did, it quickly extended Batson to civil actions, strikes by

criminal defendants, and strikes based on sex. Edmonson,

supra; McCollum, 505 U. S. 42; J. E. B., supra. But even

now, we do not apply generally applicable equal protection

principles to peremptory strikes. For example, our prece-

dents do not apply “strict scrutiny” to race-based peremp-

tory strikes. And we apply “the same protection against

sex discrimination as race discrimination” in reviewing

peremptory strikes, J. E. B., supra, at 145, even though

sex is subject to “heightened” rather than “strict” scrutiny

under our precedents. Finally, we have not subjected all

peremptory strikes to “rational basis” review, which nor-

mally applies absent a protected characteristic. Cleburne

v. Cleburne Living Center, Inc., 473 U. S. 432, 440–442

(1985); see generally Batson, supra, at 123–125 (Burger,

J., dissenting); J. E. B., supra, at 161 (Scalia, J., dissent-

ing). Thus, the Court’s own jurisprudence seems to recog-

nize that its equal protection principles do not naturally

apply to individual, discretionary strikes.

Now that we have followed Batson to its logical conclu-

sion and applied it to race- and sex-based strikes without

regard to the race or sex of the defendant, it is impossible

to exercise a peremptory strike that cannot be challenged

by the opposing party, thereby requiring a “neutral” ex-

planation for the strike. But requiring an explanation is

inconsistent with the very nature of peremptory strikes.

Peremptory strikes are designed to protect against fears of

partiality by giving effect to the parties’ intuitions about

jurors’ often-unstated biases. “[E]xercised on grounds

normally thought irrelevant to legal proceedings or official

action,” like “race, religion, nationality, occupation or

affiliations,” Swain, supra, at 220, they are a form of

action that is by nature “arbitrary and capricious,” 4 W.

Blackstone, Commentaries on the Laws of England 346

(1769) The strike must “be exercised with full freedom, or

it fails of its full purpose.” Lewis v. United States, 146

Cite as: 588 U. S. ____ (2019) 41

THOMAS, J., dissenting

U. S. 370, 378 (1892). Because the strike may be exercised

on as little as the “sudden impressions and unaccountable

prejudices we are apt to conceive upon the bare looks and

gestures of another,” id., at 376, reasoned explanation is

often impossible. And where scrutiny of individual strikes

is permitted, the strike is “no longer . . . peremptory, each

and every challenge being open to examination.” Swain,

supra, at 222.

In sum, as other Members of this Court have recognized,

Batson charted the course for eliminating peremptory

strikes. See, e.g., Rice v. Collins, 546 U. S. 333, 344 (2006)

(BREYER, J., concurring); Batson, supra, at 107–108 (Mar-

shall, J., concurring). Although those Justices welcomed

the prospect, I do not. The peremptory system “has al-

ways been held essential to the fairness of trial by jury.”

Lewis, supra, at 376. And the basic premise of Strauder—

that a juror’s racial prejudices can make a trial less fair—

has not become “obsolete.” McCollum, 505 U. S., at 61

(opinion of THOMAS, J.). The racial composition of a jury

matters because racial bi

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